r 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


POPULAR  LAW  LIBRARY 
PUTNEY 


Introduction  to  the  Study 

of  Law 
Legal  History 


EXAMINATION  QUESTIONS 


BY 

ALBERT  H.  PUTNEY,  A.  B.,  D.  C.  L.,  LL.  D. 

DEAN  OF  THE  ILLINOIS  COLLEGE  OF  LAW, 

AUTHOR  OF  "GOVERNMENT  IN  THE  UNITED  STATES,"  "COLONIAL  GOVERNMENTS 

OP  EUROPEAN  STATES,"  "LANDMARK  CASES  IN  UNITED  STATES 

CONSTITUTIONAL  LAW,"  ETC.,  MEMBER  OF  THE  BAR 

OF    MASSACHUSETTS    AND    ILLINOIS 


VOLUME  I 


Published  by  the 

CREE  PUBLISHING  COMPANY 

MINNEAPOLIS 


v.t 

T    . 


1908 


Copyright,  1908,  by 

CREE  PUBLISHING  CO. 

Minneapolis,  Minn. 


All  rights  reserved. 


Brethren  Publishing  House,  Elgin,  111. 


TABLE  OF  CONTENTS— VOLUME  I. 


FIRST  SUBJECT  — INTRODUCTION  TO 
THE  STUDY  OF  LAW. 

Section      1     Definition  and  Nature  of  Law 11 

2  Legal  Conceptions 13 

3  Substantive  and  Adjective  Law 14 

"           4     Origin  of  Law 15 

5     Early  Branches  of  the  Law 16 

"           6     Domestic  Relations 16 

"           7     Separation  of  the  Law  of  Torts  and  Criminal  Law 17 

8  Distinction  between  Real  Property  and  Personal  Property.  19 

9  Appearance  of  Contract  Law 20 

"         10    Conceptions  of  Cont/acts  in  the  Roman  Law  and  in  the 

Common  Law 20 

11  Further  Divisions  of  the  Law 21 

12  Basis  of  American  Law 22 

"         13     American  Adjective  Law 23 

"         14    Where  to  Find  the  Law 23 

"         15    Law  and  History 25 

"         16    The  Great  Law  Developing  Nations,  BABYLONIA,  ROME, 

ENGLAND..,  26 


SECOND  SUBJECT— LEGAL  HISTORY. 

CHAPTER  I. 

THE  LAW  OP  BABYLONIA 29 

Section      1     Beginnings  of  Law 29 

"          2    The  Code  of  Hammurs.t: 31 

"           3    Adjective  Law 32 

4  Domestic  Relations 33 

5  Real  and  Personal  Property 35 

"           6     Contract  Law 36 

7     Banking  and  Admiralty  Law 37 

CHAPTER  II. 

THE  LAW  OF  GREECE 39 

Section      8     Greece 's  Place  in  the  History  of  Legal  Development ....  39 

"           9     Public  Law 40 

iil 


iv  CONTENTS 

Section  10  Adjective  Law 41 

"  11  Substantive  Law 42 

CHAPTER  III. 

ROMAN  LAW 43 

Section  12  Importance  of  the  Study  of  Roman  Law 43 

"  13  Early  Rome 44 

"  14  Early  Political  Institutions 45 

"  15  First  Reforms  in  the  Law 46 

"  16  The  Law  of  the  Twelve  Tables 48 

"  17  Contest  between  Patricians  and  Plebeians 48 

"  18  Legis  Actiones 49 

"  19  Early  Contract  Law 50 

"  20  Jus  Gentium 51 

"  21  The  Empire 53 

"  22  The  Constitutions 54 

"  23  Jus  Respondendi 55 

"  24  Roman  Law  Writers 56 

"  25  The  Codes 57 

"  26  The  Theodosian  Code 57 

"  27  Justinian..  57 


CHAPTER  IV. 

OUTGROWTHS  OF  ROMAN  LAW 67 

Section   28    The  Fall  of  Rome 67 

"        29    The  Barbarian  Codes 68 

"        30    Renewed  Study  of  Roman  Law 68 

"        31     The  Civil  Law 69 

"        32    The  Canon  Law 70 

"        33    Extent  of  the  Jurisdiction  of  the  Canon  Law.  .  71 


CHAPTER  V. 

TEUTONIC  AND  ANGLO-SAXON  CUSTOMS  AND  LAWS 73 

Section    34    The  Teutonic  Origin  of  England's  Political  and  Legal  In- 
stitutions   73 

"         35    Early  Institutions  as  Described  in  the  Germania 74 

"         36    The  Anglo-Saxon  Conquest  of  England 77 

"         37    Changes  in  Anglo-Saxon  Institutions  Occasioned  by  this 

Conquest 78 

"         38    Early  Political  and  Constitutional  History  of  Anglo-Saxon 

England 80 

"         39    The  Union  of  the  Seven  Kingdoms 85 

"         40     Political  and  Constitutional  History  of  Anglo-Saxon  Eng- 
land. .  86 


CONTENTS.  V 

Section    41     The  Saxon  Witenagemote 96 

"         42    The  Anglo-Saxon  Private  Law 97 

CHAPTER  VI. 

CONSTITUTIONAL   AND    POLITICAL    HISTORY    OF    ENGLAND   FROM  THE 

NORMAN  CONQUEST  TO  THE  REIGN  OF  GEORGE  III 101 

Section    43    The  Norman  Conquest 101 

"        44    Changes  Caused  by  the  Norman  Conquest 102 

45    The  Feudal  System 102 

"         46    The  Norman  Kings 104 

"        47    Legal  Reforms  of  Henry  II 105 

"        48    Magna  Charta 107 

"        49    Simon  de  Montfort  and  the  Origin  of  Parliament 109 

"        50    Parliament  in  the  Fourteenth  Century 113 

"        51    The  War  of  the  Roses 114 

"        52    The  Tudors 118 

"         53    Contest  between  the  Stuarts  and  the  House  of  Commons. .  121 

"        54    The  Bill  of  Rights 137 

"        55    The  Ministry  System 140 

"        56    The  House  of  Hanover 141 

CHAPTER  VII. 

THE  ENGLISH  COMMON  LAW 145 

Section    57    The  Norman  Conquest 145 

"        58    The  Feudal  System 146 

"         59    Feudal  Tenures 147 

"        60     Incidents  of  the  Feudal  Tenures 150 

"         61     End  of  the  Feudal  System 152 

"        62    Early  Important  Statutes  on  the  Law  of  Real  Property.  .  .  152 

"        63    Early  Adjective  Law 153 

"        64    The  Original  Writs 154 

"        65    The  Statute  of  Westminster  II 156 

"        66    Criminal  Law 157 

"        67    Jury  Trial 159 

"         68     Domestic  Relations ' 160 

"        69    Early  Contract  Law 161 

"         70     Development  of  Contract  Law 162 

71     Contest  between  the  Common  Law  and  Civil  and  Canon  Law  162 

"         72    Legislation  of  the  Sixteenth  and  Seventeenth  Centuries. .  165 

CHAPTER  VIII 

EQUITY  JURISPRUDENCE 167 

Section    73    Rigidity  of  the  Common  Law 167 

74     Beginnings  of  Equity  Jurisprudence 169 

"         75    Equity  Jurisprudence  in  the  Reign  of  Richard  II 170 


VI  CONTENTS. 

Section  76  Forms  of  Early  Bills 172 

"  77  Contest  with  the  Common  Law  Courts 180 

"  78  Uses 182 

"  79  The  Statute  of  Uses 184 

CHAPTER  IX. 

OUTLINE  OF  THE  CONSTITUTIONAL,  POLITICAL  AND  LEGAL  HISTORY 
OF  THE  THIRTEEN  COLONIES,  AND  OF  THE  UNITED  STATES  PRIOR 
TO  THE  ASSEMBLING  OF  THE  FEDERAL  CONSTITUTIONAL  CONVEN- 
TION   185 

Section    80     English  Colonization  in  America 185 

"        81     The  Thirteen  Colonies 193 

"         82    The  Colonial  Government  of  Virginia 195 

"        83    Massachusetts 197 

"        84    Connecticut 201 

"         85    Rhode  Island 202 

"        86    New  Hampshire 203 

"        87    New  York 203 

"        88    New  Jersey 204 

"         89     Pennsylvania  and  Delaware 205 

90    Maryland 207 

"        91    North  and  South  Carolina 208 

"        92    Georgia 209 

"        93    The  Revolutionary  War 209 

"        94    The  Articles  of  Confederation 212 

"        95    Judicial  Powers  of  the  United  States  Government  under 

the  Articles  of  Confederation 214 

"        96    Causes  Leading  up  to  the  Constitutional  Convention 218 

CHAPTStv   X. 

AMERICAN  CONSTITUTIONAL  LAW 221 

Section    97    The  Constitutional  Convention 221 

"         98    The  Virginia  and  New  Jersey  Plans 224 

"         99    The  Three  Great  Compromises  in  the  Constitutional  Con- 
vention   230 

"       100    Adoption  of  the  Constitution 236 

"       101    The  Early  Amendments 237 

"       102     Political  Divisions  on  Interpretation  of  the  Constitution.  .  238 

"       103     Recent  Constitutional  History 241 

Quiz  Questions,  First  Subject 243 

"  "          Second  Subject 247 

Appendix  A     Extracts  from  the  Code  of  Hammurabi 265 

"        B     The  Law  of  the  Twelve  Tables 275 

"        C     MagnaCharta 279 

"        D     The  Petition  of  Right 289 

"        E     The  Bill  of  Rights 293 


CONTENTS.  Vll 

Appendix  F  The  Declaration  of  Independence 299 

' '        G  The  Articles  of  Confederation 303 

"        H  The  Virginia  Plan 309 

I  The  New  Jersey  Plan 311 

"        J  Abbreviations  of  the  Titles  of  Reports 313 

"         K  Statute  of  De  Donis 339 

"        L  Statute  of  Quia  Emptores 341 

"        M  Statute  of  Uses 343 

"         N  Statute  Abolishing  Feudal  System  in  England 349 

"        O  Statute  of  Frauds..  .  353 


FIRST  SUBJECT. 


Introduction  to  the  Study  of  Law, 


INTRODUCTION    TO    THE    STUDY    OF    LAW. 

SECTION  1.     DEFINITION  AND  NATURE  OF  LAW. 

"Law"  is  a  word  of  illimitable  use  in  both  its 
popular  and  its  technical  sense.1  In  its  broader  sense 
it  is  best  defined  as  a  rule  of  action,  and  in  this  sense 
the  term  is  used  in  all  sciences.  In  its  more  technical 
sense  a  law  is  a  rule  of  civil  conduct  prescribed  by 
the  law-making  power  in  the  state.2 

Some  other  definitions  of  law  which  have  been 
given  are  as  follows:  "A  rule  of  civil  conduct  pre- 
scribed by  the  supreme  power  in  a  state,  commanding 
what  is  right  and  prohibiting  what  is  wrong."  s 

'The  laws  of  a  commonwealth  *  *  *  *  are 
those  rules  and  principles  of  conduct  which  the  govern- 
ing power  in  a  community  recognizes  as  the  rules  and 
principles  which  it  will  enforce  or  sanction,  and  accord- 
ing to  which  it  will  regulate,  limit,  or  protect  the  con- 
duct of  its  members."  4 

'The  term  law,  as  used  in  this  constitutional 
provision,  embraces  all  legal  and  equitable  rules  defining 
human  rights  and  duties  and  providing  for  their  en- 
forcement; not  only  as  between  man  and  man,  but 
also  between  the  state  and  its  citizens."  5 

The  Supreme  Court  of  the  United  States  has 
defined  the  laws  of  a  state  to  be  "the  rules  and  enact- 
ments promulgated  by  the  legislative  authority  thereof, 
or  long-established  local  customs  having  the  force  of 
laws."6 

1  25  Cyc.,  163.  *  Bouvier,  Law  Dictionary. 

2  18  American  &  English  Enc.  of  *  Jenkins  vs.  Ballantyne,  8  Utah, 

Law,  569.  247. 

3  Blackstone,  Com.,  14.  •  Swift  vs.  Tyson,  16  Peters,  18. 

11 


12  INTRODUCTION  TO   THE   STUDY   OF   LAW. 

No  uniform  definition  of  this  term  has  ever  been 
accepted  and  many  sharp  controversies  have  taken 
place  on  this  point  between  different  law  writers. 

On  the  proper  purpose  of  laws  there  is  less  ground 
for  a  difference  of  opinion.  The  only  sound  basis  for 
any  law  is  the  general  good  of  the  community  which 
is  to  be  governed  thereby.  The  Supreme  Court  of  the 
United  States  has  thus  expressed  its  opinion  on  this 
point:  "All  laws,  all  political  institutions,  are  dis- 
positions for  the  future,  and  their  professed  object  is 
to  afford  a  steady  and  permanent  security  to  the  inter- 
ests of  society;" 7  and  again,  " Arbitrary  power, 
enforcing  its  edicts  to  the  injury  of  the  persons  and 
property  of  its  subjects,  is  not  law,  whether  manifested 
as  the  decree  of  a  personal  monarch  or  of  an  impersonal 
multitude."  8 

The  laws  of  an  absolute  monarchy,  however,  are 
the  general  rules  or  edicts  issued  at  the  pleasure  of  the 
king  or  emperor.9  In  a  constitutional  country  the 
laws  are  the  expression,  either  directly  or  indirectly, 
of  the  will  of  the  people,  or  more  strictly,  of  that 
portion  of  the  people  to  whom  a  share  in  the  govern- 
ment is  given. 

Society  is  only  made  possible  by  law,  and  "the 
supremacy  of  the  law  is  the  foundation  upon  which 
our  institutions  rest."  10  A  law,  at  least  in  a  consti- 
tutional country,  must  be  of  general  application.  If  a 
rule  of  law  is  settled  the  courts  cannot  disregard  it 
because  they  consider  it  unjust "  or  inconvenient.12 
The  proper  remedy  in  such  a  case  is  in  the  hands  of 
the  legislative  department.  Macaulay  has  well  said 

7  Rector  etc.  of  Christ  Church  vs.  10  Northern  Securities  Company  vs. 
Philadelphia  County,  24  How-  U.  S.,  193  U.  S.,  350. 

ard,  302.  "  Childress  vs.  Emory,  8  Wheaton, 

•  Hurtado  vs.  California,  110  U.  S.,  672. 

536.  "  Ex  parte  Kearney,  7  Wheaton, 

•  United    States    vs.    Arredondo,  45. 

6  Peters,  714. 


INTRODUCTION   TO   THE   STUDY   OF   LAW.  13 

that  breaking  a  law  for  a  good  purpose  is  as  dangerous 
as  breaking  it  for  a  bad  purpose,  because  in  the  first 
case  a  precedent  is  formed,  with  popular  approval, 
which  is  sure  to  be  followed  later  for  bad  purposes. 
"It  is  a  fundamental  principle  in  our  government, 
that  no  individual,  whether  in  office  or  out  of  office, 
is  above  the  law.  In  this  our  safety  consists."  13 

SECTION  2.     LEGAL  CONCEPTIONS. 

Four  great  legal  conceptions  underlie  the  whole 
study  of  law;  rights,  duties,  wrongs,  and  remedies. 
It  is  in  the  order  just  given  that  these  conceptions 
are  most  generally  considered  at  the  present  time. 
'  'A  system  of  laws  promulgated  by  a  lawgiver  of  suffi- 
cient wisdom  and  illimitable  foresight  would  undoubt- 
edly commence  with  a  definition  of  rights,  and  thence 
proceed  to  prescribe  duties,  thence  to  prohibit 
wrongs,  and  finally  to  provide  legal  remedies."  " 

"To  the  analytical  jurist  it  may  well  seem  that 
the  ideal  code  might  be  framed  in  such  order.  It  can- 
not, however,  escape  observation  that  the  method  of 
unfolding  legal  truth  here  indicated  is  exactly  the 
reverse  of  the  process  by  which  law  has,  as  a  matter 
of  fact,  historically  developed.  To  the  finite,  human 
mind  legal  truth  has  come  as  a  sort  of  gradual  revela- 
tion. Form,  which  is  so  conspicuous  in  early  law, 
serves  as  a  vehicle  for  the  abstract.  As  the  mind  is 
gradually  educated  to  the  point  of  grasping  the  ab- 
stract, formality  disappears.  In  legal  thought,  as  in 
philosophic  speculation,  we  must  move  through  the 
concrete  up  to  higher  abstractions,  and  if  we  would 
conduct  the  reader  over  the  true  path  of  legal  knowledge 
we  must  take  a  course  exactly  the  reverse  of  that 

u  McLean,     J.,     in     Kendall     vs.  "  Robinson,  Elements  of  American 

States,  3  Howard,  792.  Jurisprudence,  155. 


14  INTRODUCTION  TO  THE  STUDY  OF  LAW. 

which  the  analytical  jurist  pursues  in  his  speculations. 
In  others  words,  instead  of  beginning  with  'right  '- 
a  term  so  highly  abstract — we  must  begin  with  the 
phenomenon  of  adjudication.  The  order  in  which 
the  different  conceptions  appear  is  somewhat  as  follows : 
judge,  court,  adjudication,  legal  proceeding  (action  or 
remedy),  wrong,  duty,  right. 

"It  may  at  first  seem  strange  that  historically 
adjudication  should  precede  the  development  of  the 
conception  of  law,  for  according  to  existing  ideas 
adjudication  is  only  an  application  of  law  and  presup- 
poses the  existence  of  a  body  of  legal  principles;  yet 
it  is  nevertheless  true  that  law  is  built  up  inductively 
by  observing  and  comparing  particular  decisions. 

"This  conclusion  is  borne  out  to  the  utmost  degree  of 
certainty  by  all  that  we  know  of  legal  development 
in  early  society.  What  the  early  communities  must 
have  is  a  decider  or  arbitrator  of  disputes.  It  is  obvi- 
ous that  the  reverend  and  wise  man,  the  priest,  or  the 
king,  one  who  by  virtue  of  his  wisdom,  power,  and  posi- 
tion can  command  the  love  and  obedience  of  all, 
would  be  the  first  to  fulfil  the  function  of  judge.  The 
desire  peacefully  to  settle  disputes  instead  of  resorting 
to  violent  modes  of  redress  would  gradually  make  itself 
felt  throughout  the  community.  The  decisions  of 
this  primitive  judge  must  inevitably  reflect  the  current 
ideas  of  justice,  and  in  course  of  time  the  points  of 
likeness  in  many  cases  are  observed  and  teach  the 
community  its  first  lesson  in  law."  15 

SECTION  3.     SUBSTANTIVE  AND  ADJECTIVE  LAW. 

All  law  can  be  classified  either  as  substantive 
law  or  as  adjective  law.  Substantive  law  embraces  all 

11  The  Foundations  of  Legal  Liability — Street — Vol.  Ill,  pp.  3  and  4. 


INTRODUCTION   TO   THE   STUDY   OF   LAW.  15 

those  provisions  which  relate  to  the  rights  either  of 
individuals  or  of  society  at  large,  and  of  the  wrongs 
which  infringe  such  rights.  Adjective  law  has  to  do 
with  the  rules  under  which  these  rights  are  vindicated, 
and  these  wrongs  redressed.  The  great  mass  of  the 
law  at  the  present  time  is  substantive,  as  can  be  seen 
by  a  glance  at  the  chart  of  the  law  contained  in  this 
volume.  The  average  law  student  will  spend  eighty 
per  cent  of  the  time  given  to  his  entire  course  on  the 
various  branches  of  substantive  law.  To  see  how 
greatly  this  proportion  varied  hi  earlier  times,  we 
have  only  to  turn  to  the  writings  of  Bracton,  the  great 
English  law  writer  of  the  thirteenth  century;  this 
writer  takes  up  the  law  under  the  heads  of  Persons, 
Things,  and  Actions  and  devotes  7,  91,  and  356  folios 
respectively  to  these  subjects.  The  first  two  divisions 
cover  substantive  law,  the  third,  adjective. 

The  relations  existing  between  rights  and  remedies 
are  in  fact  entirely  reversed  from  those  existing  in 
early  times.  To-day  a  remedy  is  given  wherever  there 
is  a  legal  right;  formerly  (i.  e.  after  a  legal  system  of 
any  kind  had  been  established)  a  legal  right  only  existed 
where  there  was  a  remedy  which  could  be  used  to  en- 
force it. 

SECTION  4.    ORIGIN  OF  THE  LAW. 

The  beginnings  of  law  are  everywhere  lost  in  ob- 
scurity. Laws  of  some  kind  were  necessary  before 
historians  arose,  and  the  gradual  growth  of  legal 
customs  would  in  any  event  have  been  too  gradual  to 
have  attracted  the  attention  of  historians  even  if 
they  had  then  existed. 

The  original  forces  behind  the  early  laws  may  be 
said  to  be  those  of  custom  and  might.  In  this  respect 


16  INTRODUCTION   TO   THE   STUDY   OF   LAW. 

private  law  in  its  infancy  bears  a  striking  resemblance 
to  the  International  Law  of  to-day.  With  no  general 
tribunal  to  enforce  the  principles  of  this  branch  of  law, 
its  existence  at  all  depends  on  the  fact  that  nations 
will  generally  follow  the  settled  customs  governing 
relations  between  states.  In  cases  of  disputes  the 
stronger  nation  will  force  its  views  upon  the  weaker. 
So  among  primitive  people  in  their  private 
dealings.  It  was  soon  appreciated  that  people  could  not 
live  together  in  society  without  some  rules  governing 
their  respective  rights  and  liabilities  and  their  dealings 
one  with  another.  The  rules  would  arise  gradually 
and  finally  acquire  the  force  of  customs.  They  would 
be  in  general  followed  by  the  members  of  the  com- 
munity, but  when  this  was  not  the  case,  the  enforce- 
ment of  their  observance  would  generally  fall  upon  the 
party  injured  by  the  breach. 

SECTION  5.    EARLY  BRANCHES  OF  THE  LAW. 

The  important  branches  in  all  early  systems  of 
jurisprudence  are  few  in  number.  Of  the  many  sub- 
jects into  which  the  law  is  divided  at  the  present  time, 
some  were  entirely  unknown,  others  were  of  slight 
importance.  The  oldest  branches  of  the  law  under 
most  systems  were  the  laws  governing  Domestic  Rela- 
tions, and  a  combination  of  Criminal  Law  and  Torts. 
The  law  of  Real  Property  arose  early  in  the  agricul- 
tural stage  of  the  economic  development  of  a  race; 
while,  on  the  other  hand,  the  law  of  personal  property 
and  of  contracts  were  late  in  making  their  appearance. 

SECTION  6.    DOMESTIC  RELATIONS. 

Perhaps  the  oldest  of  all  branches  of  the  law  is 
that  of  Domestic  Relations.  The  first  step  away  from 
anarchy  and  towards  social  organization  is  the  creation 


INTRODUCTION   TO   THE   STUDY   OF   LAW.  17 

of  the  family.  The  state  is  evolved  from  the  family 
by  a  process  of  combinations,  and  the  government  of 
early  states  is  an  enlarged  copy  of  the  government  of 
the  family.  The  position  of  the  King  is  modeled  on  that 
of  the  father.  The  family  organization  and  relations 
are  always  protected  by  the  tribe  or  state.  The 
respective  rights  and  obligations  of  members  of  the 
family  are  clearly  defined  at  a  period  when  all  other 
law  is  vague  and  uncertain. 

The  basis  of  the  family  is  marriage.  Early 
marriages  would  almost  invariably  arise  either  from 
capture  or  purchase,  and  the  form  of  the  marriage 
ceremony  among  all  early  races  long  retained  the 
fiction  of  capture  or  purchase  after  the  reality  had 
disappeared.  Even  to-day,  when  these  fictions  have 
disappeared  from  the  law,  they  are  retained  in  our 
marriage  customs. 

Marriages  which  are  the  result  either  of  capture  or 
purchase  bring  about  a  high  degree  of  authority  on  the 
part  of  the  husband,  and  a  corresponding  degradation 
on  that  of  the  wife.  Under  the  rules  of  nearly  all  an- 
cient systems  of  jurisprudence  the  legal  rights  of  the 
wife  are  little  superior  to  those  of  a  slave.  The  excep- 
tions to  the  rule  are  mainly  to  be  found  among  those 
races  which  continue  to  reckon  relationship  through 
the  female  line,  and  where  a  greater  laxity  is  allowed 
in  marital  relations. 

The  authority  of  the  father  over  his  children 
generally  continues  throughout  life,  and  is  almost 
absolute  in  its  extent. 

SECTION  7.    SEPARATION  OF  CRIMINAL  LAW  AND  THE 
LAW  OF  TORTS. 

The  conception  of  the  distinction  between  a  crime 
and  a  tort  is  one  requiring  a  high  degree  of  legal  de- 

Vol.  1—2. 


18  INTRODUCTION   TO   THE    STUDY   OF   LAW. 

velopment.  The  uncivilized  mind,  in  law  as  in  othei 
sciences,  is  always  looking  at  the  concrete, and  fails 
to  grasp  the  abstract.  If  a  murder  or  a  theft  is  com- 
mitted the  wrong  to  the  individual  is  at  once  apparent 
to  everyone;  the  wrong  to  society  is  too  subtle  a  one 
to  be  easily  seen  by  the  savage  or  even  semi-civilized 
races. 

The  first  view  of  all  races  has  been  that  the  one  who 
has  suffered  a  wrong  is  the  one  who  should  redress  it, 
or  the  one  to  whom  compensation  should  be  made. 
If  the  wrong  was  that  of  murder  the  relatives  of  the  de- 
ceased are  the  ones  to  redress  the  wrong  or  receive  the 
compensation.  We  see  here  the  double  thought  of 
punishment  for  the  wrong  doer,  and  of  compensation 
for  the  party  injured,  but  the  two  are  in  the  alternative ; 
if  a  person  who  has  suffered  an  injury  chooses 
to  accept  compensation  therefor,  he  waives  his  right 
to  inflict  vengeance  on  the  wrong  doer. 

The  first  step  away  from  this  state  of  affairs  is 
when  the  contest  between  the  accuser  and  the  accused 
takes  place  before  the  court  and  under  specified  rules. 
Actual  physical  contests  to  settle  accusations  of  dis- 
putes have  been  parts  of  regular  judicial  procedure 
under  many  legal  systems,  and  the  fictions  of  such  con- 
tests have  continued  beyond  the  actual  practice. 

Even  when  the  court  takes  upon  itself  the  decision 
of  alleged  wrongs,  it  for  a  long  time  fails  clearly  to 
distinguish  between  crime  and  tort.  Both  are  tried 
at  the  same  time  and  punishment  and  damages  decreed 
by  the  same  judgment. 

A  system  of  jurisprudence  which  clearly  differen- 
tiates the  crime  and  the  tort  ranks  high  in  the  legal 
scale.  Few  European  codes  do  this  till  near  the  close 
of  the  middle  ages. 


INTRODUCTION  TO  THE  STUDY  OF  LAW.          19 

SECTION  8.     DISTINCTION  BETWEEN  REAL  PROPERTY 
AND  PERSONAL  PROPERTY. 

Every  system  of  laws  recognizes  a  fundamental 
division  of  property  into  real  and  personal,  or  into 
movable  and  immovable.  Although  the  exact  dividing 
line  between  the  two  classes  is  a  variable  one  in  differ- 
ent systems,  still  in  general  rights  over  land  and  those 
things  annexed  to  the  land  fall  into  one  class,  and 
the  possession  of  movable  articles  into  another.  The 
very  technical  rules  governing  the  exact  extent  of  real 
property  at  common  law  will  be  considered  hi  Volume 
Six  of  this  series. 

Personal  property  is  older  than  real  property. 
The  stone  hatchet  and  the  rude  canoe  are  considered 
the  personal  property  of  their  owner  long  before  anyone 
attempts  to  appropriate  land  to  his  exclusive  use. 
Personal  property,  however,  long  remains  of  little  im- 
portance; until  a  country  has  reached  a  comparatively 
high  stage  of  commercial  development  the  only  kinds 
of  personal  property  of  importance  are  cattle  and 
weapons,  and  the  necessary  legal  principles  for  the 
regulation  of  the  ownership  of  these  articles  are  few 
and  simple.  The  law  of  real  property,  on  the  other 
hand,  becomes  of  the  most  vital  importance,  as  soon  as 
the  ownership  of  this  species  of  property  is  recognized 
at  all.  There  is  a  long  period  in  the  economic  develop- 
ment of  every  race,  when  practically  the  sole  occupation 
open  to  the  mass  of  the  community  is  that  of  agricul- 
ture. As  in  every  locality  population  tends  rapidly  to 
outstrip  the  supply  of  available  land,  the  ownership, 
and  the  laws  governing  the  ownership  of  real  property, 
become  of  the  most  vital  importance.  The  history 
of  the  development  of  the  English  law  of  real  property 
will  be  treated  in  detail  under  the  subject  of  legal 
history. 


20          INTKODUCTION  TO  THE  STUDY  OF  LAW. 

SECTION  9.    APPEARANCE  OF  CONTRACT  LAW. 

There  is  no  more  striking  difference  to  be  found 
between  a  primitive  and  a  highly  developed  legal  sys- 
tem, than  in  the  relative  importance  of  the  law  of  con- 
tracts. In  modern  times  the  central  subject  of  the 
whole  body  of  the  law  is  that  of  contracts.  In  the 
study  of  law  the  first  branch  of  the  substantive  law 
to  be  taken  up  is  that  of  contracts,  and  this  subject  and 
its  subdivisions  occupy  a  large  part  of  the  entire 
course.  Our  highly  developed  and  specialized  eco- 
nomic and  industrial  systems  render  a  multitude  of  con- 
tracts a  necessity  to  business  life,  and  the  importance 
of  the  subject  is  daily  increasing. 

In  the  early  systems  the  law  of  contract  is  practi- 
cally limited  to  that  of  bailments  and  executed  sales. 
The  simple  conditions  and  the  primitive  state  of  society 
give  no  occasion  for  the  creation  of  complicated  or 
future  contracts.  The  important  rights  of  the  individual 
are  those  natural  and  absolute  rights  which  belong  to 
him  as  a  member  of  the  community,  rather  than  those 
special  ones  which  he  acquires  by  contract. 

SECTION   10.      CONCEPTIONS  OF   CONTRACTS  IN  THE 
ROMAN  LAW  AND  IN  THE  COMMON  LAW. 

Striking  differences  appear  in  the  fundamental 
conceptions  of  the  nature  of  a  contract  to  be  found  in 
the  two  great  systems  of  jurisprudence,  the  Roman  Law 
and  the  Common  Law.  There  are  two  standpoints 
from  which  a  contract  may  be  viewed,  that  of  the  right, 
and  that  of  the  obligation  or  duty.  To  a  certain  extent 
each  is  the  correlative  of  the  other,  but  they  are  not 
the  exact  correlative.  A  right  created  by  a  contract 
in  favor  of  one  of  the  parties  to  it  places  a  correspond- 
ing duty  upon  the  other;  but  one  party  may  be  under 


INTRODUCTION   TO   THE    STUDY   OF   LAW.  21 

obligation  to  do  what  the  other  party  has  strictly 
no  right  to  claim.  The  great  difference  between  the 
principle  of  the  Roman  Law  and  the  Common  Law 
on  this  subject  arises  from  the  fact  that  the  Roman  Law 
is  looking  primarily  at  the  obligation  and  the  Common 
Law  at  the  right.  The  result  was  that  the  Roman 
Law  would  enforce  a  contract  founded  upon  moral 
obligation,  while  one  of  the  most  fundamental  principles 
of  the  Common  Law  has  always  been  that  a  consider- 
ation is  necessary  for  the  validity  of  any  agreement. 
These  distinctions  will  be  further  considered  under 
the  subjects  of  Legal  History  and  Contracts. 

SECTION   11.    FURTHER  SUBDIVISIONS  OF  THE  LAW. 
The  subjects  of  Domestic  Relations  (Subject  X 
in  this  work),   Criminal  Law  (Subject  XXX),   Torts 
(Subject    VIII),       Real    Property    (Subject    XVII), 
Personal    Property    (Subject    XIV)     and    Contracts 
(Subject  VI)    have    already  been    referred  to.    The 
whole  tendency  of  law  has  constantly  been  towards 
the  creation  of  new  branches  of  the  law  and  the  sub- 
division of  old  ones.    This  tendency  of  subdivision  has 
been   particularly  active   in  the    field    of   contracts, 
where  we  now  have  the  following  clearly  defined  im- 
portant  subdivisions:    Agency  (Subject  VII),    Sales 
(Subject    XI),     Bailments    (Subject    XII),     Carriers 
(Subject  XIII),  Partnership  (Subject  XXIII),  Private 
Corporations  (Subject  XXIV),  Bills  and  Notes  (Subject 
XXVI),   Guaranty  and  Suretyship  (Subject  XXVII) 
and  Insurance  (Subject  XXVIII).    As  off-shoots  from 
the  law  of  Real  Property  we  have  Abstracts  (Subject 
XVIII)  and  Mining  Law  (Subject  XIX),  and  from 
the  law  of  Personal  Property,  Patents  (Subject  XV) 
and   Copyrights    (Subject   XVI).     The   law  of  Wills 
(Subject  XXXII)  treats  of  the  disposal  after  death  of 


22  INTRODUCTION   TO   THE   STUDY   OF   LAW. 

both  species  of  property.  As  a  supplemental  system 
to  that  of  the  Comman  Law  we  have  Equity  Juris- 
prudence (Subject  XX),  of  which  Trusts  (Subject  XXI) 
is  a  subdivision.  Under  adjective  law  we  find  Common 
Law  Pleading  (Subject  XXXIV),  Equity  Pleading 
(Subject  XXII),  Code  Pleading  (Subject  XXXV), 
Criminal  Procedure  (Subject  XXXI),  Federal  Pro- 
cedure (Subject  XXXVI),  Evidence  (XXXVII), 
Damages  (Subject  IX),  Administration  (Subject 
XXXIII)  and  Bankruptcy  (Subject  XXIX). 

In  the  field  of  public  law  it  is  necessary  to  consider 
United  States  Constitutional  Law  (Subject  III), 
State  Constitutions  (Subject  IV) ,  Statutory  Construc- 
tion (Subject  V)  and  Public  Corporations  (Subject 
XXV),  together  with  International  Law,  both  Public 
(Subject  XXXVIII)  and  Private  (Subject  XXXIX). 
Other  subjects  treated  in  this  series  of  volumes  are 
Legal  History  (Subject  II),  Spanish- American  Law 
(Subject  XL)  and  Legal  Ethics  (Subject  XLI). 

SECTION  12.    BASIS  OF  AMERICAN  LAW. 

The  Common  Law  of  England  is  in  general  the 
basis  of  the  law  of  all  the  states  of  the  American  Union 
except  Louisiana,  whose  system  is  based  upon  the 
Civil  or  Roman  Law.  In  most  of  the  states  it  is 
provided  that  the  English  Common  Law  and  English 
Statutes  relative  to  private  law  up  to  the  beginning 
of  the  fourth  year  of  James  I  (March  24,  1606),  with 
a  few  exceptions,  shall  be  accepted  as  law  in  the  state. 
The  system  of  Equity  Jurisprudence  is  accepted  in 
these  states  along  with  the  Common  Law.  In  every 
state  the  common  or  unwritten  law  must,  of  course, 
give  way  to  the  state's  constitution  and  statutes. 

The  United  States,  as  such,  has  no  Common  law. 


INTRODUCTION   TO   THE   STUDY   OF  LAW.  23 

Strictly  speaking  the  only  Federal  law  is  that  of  the 
United  States  Constitution  and  statutes.  The  Federal 
Courts,  however,  in  many  cases  apply  the  laws  of  the 
state  in  which  the  court  sits,  and  thus  indirectly  are 
governed  by  the  Common  Law. 

SECTION  13.    AMERICAN  ADJECTIVE  LAW. 

The  American  States  adopted  the  system  of 
Common  Law  Pleading  along  with  the  substantive 
common  law.  Some  states,  as  for  example  Illinois, 
still  retain  this  system  almost  in  its  entirety.  In  most 
states  however  great  changes  have  been  made  in  the 
adjective  side  of  the  law.  About  one-half  of  the  states 
have  adopted  a  general  set  of  laws  commonly  known  as 
Codes,  by  which  not  only  the  common  law  system  of 
pleading,  but  also  even  the  distinction  between  law 
and  equity,  has  been  abolished ;  and  a  new  and  simpli- 
fied system  of  pleading  and  practice  adopted,  with  a 
single  form  of  action  capable  of  being  adapted  to  meet 
the  conditions  of  every  case.  All  existing  legal  rights, 
however,  are  retained  under  these  codes  and  can  be 
enforced  under  the  new  system. 

The  laws  of  evidence  have  also  undergone  many 
changes  in  recent  years,  and  many  of  the  unreasonable 
technicalities  of  the  ancient  rules  swept  away.  These 
changes  will  be  considered  under  the  subject  of  Evi- 
dence. 

SECTION  14.    WHERE  TO  FIND  THE  LAW. 

The  whole  body  of  the  law  is  generally  divided 
into  the  two  classes  of  written  law  and  unwritten  law. 
Written  law  is  the  work  of  the  legislative  department 
of  the  governments;  unwritten  law  owes  its  force  to 
custom  and  long  continued  use,  and  its  principles  are 
to  be  found  in  the  decisions  rendered  by  the  judicial 


24  INTRODUCTION   TO   THE   STUDY   OF   LAW. 

department.  The  unwritten  law  in  all  the  States, 
of  this  Country,  except  Louisiana,  is  that  of  the  Com- 
mon Law. 

Law  in  the  United  States  is  also  divided  into 
Federal  law  and  the  law  of  the  particular  states. 

The  highest  law  of  the  land  is  the  Constitution  of 
the  United  States ;  after  this  comes  the  laws  and  treaties 
made  under  the  authority  of  this  Constitution.  The 
constitutions  and  statutes  of  a  state  prevail  over  all 
unwritten  law  but  yield  to  the  Federal  Constitution. 
In  many  states  the  written  law  has  been  codified.  A 
code  is  a  complete  system  of  law,  scientifically  arranged 
and  promulgated  by  legislative  authority.  A  code 
generally  includes  a  portion  of  what  has  formerly 
been  the  unwritten  law  of  the  state. 

Municipal  ordinances  are  the  written  laws  passed 
by  Municipal  Corporations.  Within  their  somewhat 
narrow  sphere  they  have  the  force  of  law.  Government 
orders  and  regulations,  and  the  rules  of  court,  while  not 
strictly  laws,  have  the  force  of  laws  in  many  respects. 

The  unwritten  law  is  to  be  found  in  the  reported 
decisions  of  the  courts.  There  are  complete  official 
reports  of  the  decisions  of  the  Supreme  Courts,  both 
of  the  United  States  and  of  the  States,  and  of  many 
subordinate  courts.  It  was  formerly  customary  to 
give  to  each  volume  the  name  of  its  reporter.  For 
example,  the  first  ninety  volumes  of  the  reports  of  the 
Supreme  Court  of  the  United  States  were  thus  named. 
The  names  of  these  reporters  with  their  number  of 
volumes  reported  by  each  were  as  follows:  Dallas, 
4  (1-4);  Cranch,  9  (5-13) ;  Wheaton,  12(14-25);  Peters, 
16  (26-41);  Howard,  24  (42-65);  Black,  2  (66-67); 
Wallace,  23(68-90).  Beginning  with  volume  91,  the 
United  States  reports  have  been  merely  cited  by  the 


INTRODUCTION   TO   THE   STUDY   OF  LAW.  25 

number  of  the  volume.  There  has  been  no  syste- 
matic official  reports  of  the  decisions  of  the  inferior 
Federal  courts.  All  the  decisions  of  the  Circuit  Courts 
of  Appeals  and  of  the  Circuit  Courts  since  1880  are 
contained  in  the  Federal  Reporter.  Early  cases  are 
to  be  found  in  the  set  of  books  known  as  the  Federal 
Cases. 

Every  State  has  its  official  set  of  reports  of  the 
decisions  of  the  Supreme  Court.  In  the  older  states  the 
earlier  volumes  are  named  after  their  reporters.  In 
some  states  there  are  official  reports  of  the  decisions 
of  courts  of  a  lower  grade,  as  the  Appellate  Court  Re- 
ports in  Illinois.  In  addition  to  the  official  state  re- 
ports there  are  various  unofficial  reports,  the  principal 
one  being  the  different  sets  making  up  the  "Reporter 
System"  which  by  combining  the  reports  of  several 
states  greatly  reduces  the  cost  to  the  purchaser. 

In  addition  to  American  reports,  the  English  re- 
ports may  be  resorted  to  as  evidence  of  what  the  true 
common  law  principle  on  a  certain  question  is.  More 
weight  is  given  to  English  reports  prior  to  1606  than 
those  since  that  date.16 

SECTION  15.     LAW  AND  HISTORY. 

The  law  as  it  exists  today  is  the  product  of  long 
continued  evolution.  "The  student  of  law  in  our 
times  has  come  to  recognize  the  fact  that  law  is,  in  a 
sense,  a  branch  of  history,  and  is  to  be  studied  in  a 
historic  spirit  and  by  a  historic  method;  and  as  the 
student  of  law  recognizes  the  relation  which  exists 
between  law  and  history,  so  also  has  the  student  of 
history  come  to  recognize  that  a  certain  relation  sub- 
sists between  history  and  law."  " 

16  For  list  of  reports  and  common  1T  From   lecture   by   Henry  Wade 

abbreviations  therefor  see  Ap-  Rogers,  Dean  of  the  Yale  Uni- 

pendix  J.  versity  Law  School. 


26  INTRODUCTION   TO   THE   STUDY   OF   LAW. 

The  law  student  who  desires  to  understand  his 
profession,  to  be  a  true  lawyer  rather  than  a  mere 
pettifogger,  must  be  willing  to  go  back  to  earlier  times 
to  study  the  origin  of  and  reasons  of  the  legal  prin- 
ciples which  he  wishes  to  apply.  Nor  in  his  study  of 
legal  history  must  he  limit  himself  to  the  history  of 
his  own  country.  All  countries,  and  the  United  States 
in  particular,  have  borrowed  from  the  legal  learning 
and  experiences  of  the  nations  which  have  gone  before 
them.  The  great  mass  of  our  legal  conceptions  and 
principles  have  been  brought  from  across  the  Atlantic 
and  in  many  cases,  in  their  ultimate  analysis,  from  a 
still  more  distant  home. 

SECTION  16.    THE  GREAT  LAW-DEVELOPING  NATIONS. 
BABYLONIA,  ROME  AND  ENGLAND. 

It  would  be  a  hopeless  and  a  useless  task  for  the 
law  student  to  undertake  the  study  of  the  legal 
systems  of  all  countries.  The  greater  majority  of 
nations  have  contributed  little  or  nothing  to  the 
wealth  of  the  world's  jurisprudence.  Three  nations, 
among  the  vast  number  of  those  of  past  and  present 
times,  stand  out  as  the  great  law-developing  nations 
of  the  world.  These  three  are  Babylonia,  Rome,  and 
England.  The  work  of  Greece  is  important,  not  for 
what  she  herself  accomplished,  but  for  the  influence 
which  she  exercised  upon  the  development  of  Roman 
law.  It  is  to  the  legal  history  of  these  four  countries, 
together  with  that  of  our  own,  that  the  balance  of  this 
volume  has  been  devoted.  The  accounts  of  the  juris- 
prudence of  the  three  earlier  nations  have  of  necessity 
been  made  very  brief,  but  a  more  detailed  treatment 
has  been  attempted  of  the  laws  and  institutions  of  the 
two  English-speaking  nations. 


SECOND  SUBJECT. 


Legal  History. 


CHAPTER  I . 

THE  LAW  OF  BABYLONIA. 
SECTION  1.    BEGINNINGS  OF  LAW. 

The  nation  which  occupied  the  land  about  the 
Euphrates  and  Tigris  rivers,  a  region  successively  the 
seat  of  the  great  Chaldean  and  Babylonian  Empires, 
appears  as  the  first  great  cosmopolitan  race  in  the 
world's  history.  The  earliest  inhabitants  of  this 
region  whom  history  can  identify,  were  of  the  Sumerian 
and  Arcadian  races,  outlying  branches  of  the  great 
Mongolian  family.  A  little  later  a  Hamitic  migration 
spreads  across  the  territory  and  finally  came  the 
Semites,  destined  to  be  the  ruling  race  of  this  country 
in  the  periods  of  its  greatest  glory.  At  the  present 
day  the  facilities  for  travel  and  migration  have  done 
much  to  break  down  lines  between  nations  and  create 
a  greater  or  less  mixture  of  blood  in  the  veins  of  every 
race.  In  the  early  periods  of  human  history,  however, 
the  difficulties  of  migration  and  racial  prejudices  all 
strongly  tended  to  prevent  mixture  of  races;  with  the 
result  that  Babylon  stands  practically  alone  among 
the  ancient  Eastern  monarchies  in  the  extremely 
mixed  ancestry  of  her  citizens. 

Babylon  was  not  only  cosmopolitan  through  the 
various  races  from  whom  her  people  were  descended, 
but  also  from  the  wide  intercourse  and  commercial 
connections  with  other  nations.  From  her  position 
between  India  and  Phoenicia,  from  her  great  rivers 
and  her  access  to  the  Persian  Gulf,  from  the  richness 

29 


30  LEGAL  HISTORY. 

of  her  own  products,  Babylon  was  long  the  great  com- 
mercial nation  of  the  world. 

It  has  always  been  the  cosmopolitan  and  the  com- 
mercial races  which  have  left  the  deepest  impress  upon 
the  world's  history,  and  the  Babylonians  furnished  no 
exception  to  this  rule.  Although  the  contributions  of 
this  nation  to  human  progress  are  found  in  nearly 
all  the  branches  of  human  knowledge  and  enterprise, 
still  her  greatest  work  was  in  the  field  of  law. 

1  The  great  work  of  the  nation  was  the  production 
of  a  system  of  law,  necessary  to  the  extended  com- 
mercial activity  of  the  city  and  produced  by  that 
activity.  This  was,  by  the  very  processes  that  called 
it  into  being,  made  a  part  of  the  world's  life.  The 
great  and  complicated  transactions  of  the  Babylonian 
merchants  needed  an  elaborate  body  of  law;  and  the 
same  influences  which  brought  into  existence  that 
mass  of  unwritten  law,  which  in  modern  times  passed 
into  statute  law,  in  other  ages  brought  into  existence 
the  commercial  or  merchant  law  in  a  form  hardly  less 
elaborate.  Wherever  the  Babylonian  merchant  went, 
he  carried  with  him  the  law  by  which  his  business,  in 
its  extent  and  fullness,  was  made  possible.  He  thereby 
became  the  pioneer  of  a  higher  civilization.  *  *  * 

"The  law  of  Babylon  did  not  come  to  an  end  with 
the  fall  of  the  new  Babylonian  Empire.  Innumerable 
tablets  of  a  later  date  than  the  conquest  of  Babylon 
by  the  Persians  have  been  preserved.  The  conquerors 
were,  in  matters  of  law,  inferior  to  the  conquered,  as 
they  had  not  been  subjected  to  the  same  conditions. 
They  adopted  to  a  large  extent  the  Babylonian  law; 
it  is  certain  that  they  adopted  it  in  those  particulars 
in  which  the  genius  of  the  Babylonians  had  achieved 
the  greatest  results.  The  extensive  conquests  of  the 


THE    LAW  OF   BABYLONIA.  31 

Persian  Empire  diffused  a  knowledge  of  Babylonian 
commercial  jurisprudence  throughout  a  vast  tract  of 
country.  That  which  was  at  one  time  the  exclusive 
possession  of  one  highly  favored  city  became  the 
property  of  the  whole  world;  although  much  had 
already  been  done  by  the  Phoenicians  in  spreading 
the  law  of  Babylon."  1 

It  is  impossible  to  ascribe  any  definite  time  to  the 
beginning  of  this  system  of  law.  Its  originators  were 
undoubtedly  the  early  Accadian  settlers  who  be- 
queathed it  to  the  Semites,  by  whom  it  was  developed 
into  the  greatest  system  of  laws  in  existence  prior  to 
the  time  of  the  Roman  Empire. 

SECTION  2.    THE  CODE  OF  HAMMURABI. 

The  Code  of  Hammurabi  (Khammurabi)  is  the 
oldest  code  of  laws  now  in  existence,  and  in  all  prob- 
ability the  oldest  extensive  code  ever  drawn  up  by 
man.  It  greatly  antedates  the  laws  both  of  Moses 
and  of  Manu.  The  exact  date  of  its  creation  is  uncer- 
tain but  was  probably  somewhere  between  two  and 
three  thousand  years  before  Christ. 

Although  the  Code  of  Hammurabi  shows  a  sur- 
prisingly high  development  of  the  law,  it  is  very  far 
from  representing  the  highest  point  reached  by  Baby- 
lonian law.  This  can  be  easily  appreciated  when  we 
remember  that  the  period  which  elapsed  between  the 
writing  of  this  code  and  the  final  overthrow  of  Babylon 
by  the  Persians,  is  approximately  equal  to  the  total 
period  so  far  included  in  the  Christian  era. 

Extracts  from  the  Code  of  Hammurabi  will  be 
found  in  Appendix  A,  to  this  subject.  The  provisions 
of  the  code  are  also  made  use  of  in  the  treatment  in  the 

1  Lee's  Historical  Jurisprudence,  Part  I,  Chapter  I. 


32  LEGAL   HISTORY. 

following   sections   of   the   various   branches   of   the 
Babylonian  law. 

SECTION  3.     ADJECTIVE  LAW. 

The  adjective  law  of  the  Babylonians  was  always 
far  less  advanced  than  their  substantive  law.  While 
many  of  the  provisions  of  the  latter  may  compare 
not  unfavorably  with  modern  legal  conceptions,  the 
former  is  on  the  level  of  that  of  races  of  a  low  grade  of 
legal  development. 

The  administration  of  the  courts  seems  to  have 
been  largely  in  the  hands  of  the  priestly  class.  This 
was  perhaps  largely  brought  about  by  the  numerous  and 
complicated  oaths  required,  both  in  business  transac- 
tions and  in  legal  proceedings. 

No  scientific  systems  for  weighing  the  value  or 
truth  of  evidence  was  ever  devised  by  this  people.  Wit- 
nesses seem  to  have  also  acted,  to  a  certain  extent,  in 
the  capacity  of  jurymen,  as  was  the  case  in  early 
English  law.  Cases,  if  possible,  were  settled  upon  the 
authority  of  written  instruments.  To  prevent  their 
alteration  an  ingenious  system  was  resorted  to. 
Written  instruments,  written  on  baked  bricks,  were 
made  out  in  duplicate;  these  duplicates  were  then 
fastened  together  in  such  a  manner  that  the  inner  one 
could  not  be  reached  without  destroying  the  outer 
one.  If  it  was  claimed  by  either  party  that  the  outer 
tablet  had  been  tampered  with,  this  tablet  was  de- 
stroyed and  the  inner  one  exposed  to  view. 

The  following  translation  of  a  Babylonian  record 
will  help  as  an  illustration  of  the  court  proceedings 
of  this  country: 

"Ilu-bani,  on  his  arrest,  makes  claim  to  the 
garden  of  Sin-Magir,  which  Mar-Martu  bought.  They 
went  to  the  judges,  and  these  brought  them  to  the 


THE   LAW   OF   BABYLONIA.  33 

door  of  the  goddess  Nin-Marki.  To  the  judges  of  the 
door  of  Nin-Marki,  Ilu-bani  swore  in  the  gate  of  Nin- 
Marki  as  follows:  'I  am  the  son  of  Sin-Magir;  he 
adopted  me,  and  my  seal  (i.  e.}  the  sealed  contract  of 
adoption)  is  not  broken.'  Thus  he  swore.  Since 
Rim-Sin  adjudged  the  garden  of  the  house  to  Ilu-bani, 
Sin-muballit  has  laid  claim  to  the  garden  and  brought 
suit  against  Ilu-bani  for  it.  They  went  to  the  judges, 
and  the  judges  brought  them  before  the  *  *  * 
and  witnesses,  and  in  the  door  of  Marduk,  Sussa,  Sin,  Husa 
and  Nin-Marki,  the  daughter  of  Marduk  they  placed 
them.  The  earlier  witness  of  Mar-Martu  in  the  door 
of  Nin-Marki,  where  Ilu-bani  said,  'I  am  the  son,  it 
belongs  to  me/  adjudged  the  garden  and  house  to 
Ilu-bani.  Sin-muballit  shall  lay  no  complaint  as  to 
illegality,  or  bring  any  further  suit  against  him. 
They  swear  by  Sin,  Samos,  Marduk  and  King  Ham- 
murabi. Before  Sin-imfurani,  the  president  of  the 
court,  Etelka-Sin,  Apil-irristi,  Ubarru,  Zanbil-arad- 
Sin,  Ahia,  Kab-dugami,  Samas-bani,  the  son  of  Abi- 
dara,  Zaninkasin,  Izkur-Ea,  Banila.  Sealed  with  the 
seal  of  the  witnesses." 

SECTION  4.    DOMESTIC  RELATIONS. 

One  of  the  earliest,  and  also  one  of  the  most  dis- 
tinctive branches  of  the  law  to  be  developed  in  the 
legal  history  of  any  race  or  nation,  is  that  of  Domestic 
Relations.  The  first  step  towards  the  construction 
of  a  social  organization  is  the  creation  of  the  family. 
The  tribe  or  nation  is  later  developed  as  an  enlarge- 
ment of  the  family,  or  a  combination  of  families,  and 
the  organization  of  the  family  serves  as  the  model  for 
the  government  of  the  larger  state.  Upon  such  organ- 
ization of  the  state,  the  unit  for  most  purposes,  for  a 

Vol.  1—3. 


34  LEGAL   HISTOEY. 

long  period,  is  the  family  rather  than  the  individual. 
Most  property  is  held  rather  as  family  than  individual 
property,  and  each  family  has  its  own  internal  govern- 
ment, under  a  head,  whose  almost  despotic  power  is 
recognized  and  protected  by  the  superior  government. 

It  is  thus  apparent  that  among  primitive  races, 
not  only  does  the  law  of  Domestic  Relations  occupy 
a  far  more  important  place  in  the  judicial  system, 
than  it  does  among  more  advanced  races,  but  also, 
that  this  branch  of  the  law  is,  in  general,  the  first 
branch  of  the  law  to  take  any  definite  shape.  Fur- 
thermore, no  other  set  of  laws  give  such  an  insight 
into  the  habits  and  character  of  a  race  as  do  those 
laws  governing  marriage,  and  regulating  the  mutual 
rights  and  obligations  existing  between  the  various 
members  of  the  family. 

The  Babylonian  marriage  was  frankly  one  of 
purchase.  The  daughter  was  considered  as  valuable 
property  for  which  the  husband  paid  a  purchase 
price  to  the  father,  or  to  the  mother,  if  the  father  was 
a  priest.  The  marriage  contracts  were  full  as  to  the 
future  property  rights  of  the  parties,  sometimes  even 
containing  provisions  as  to  a  possible  future  divorce. 
Polygamy  and  divorce  (by  the  husband)  were  per- 
mitted, but  were  rare  in  practice,  mainly  on  account 
of  the  financial  responsibilities  which  they  entailed. 

The  following  examples  of  a  marriage  contract 
and  a  divorce  letter  have  been  preserved : 2 

'  'Remu,  the  son  of  Sanhatu,  has  taken  in  marriage, 
Bastu,  the  daughter  of  priestess  of  Samas,  Belisumu, 

the  daughter  of  Uzibitu. shekels  of  silver  is 

her  gift;  since  she  (i.  e.,  the  mother),  has  received  it, 
she  is  content.     If  Bastu  says  to  Remu,  her  husband, 

*  Meisner,  op.  cit.,  p.  71.     See  also  Lee's  Historical  Jurisprudence,  Part  I, 
Chapter  I. 


THE   LAW   O^  BABYLONIA.  35 

'thou  art  not  my  husband/  then  shall  she  be  *  *  * 
and  thrown  into  the  water.  If  Remu  says  to  Bastu, 
his  wife,  'thou  art  not  my  wife,'  he  will  give  her  ten 
shekels  of  silver  as  her  quit-money." 

'  'Samas-rabi  has  put  Naramtu  away.  She  bears 
her  ziku  (?)  and  has  received  her  quit-money.  If 
Naramtu  is  married  to  another,  Samas-rabi  will  not 
love  her  more."  (Followed  by  oath,  date  and  wit- 
nesses.) 

The  position  of  a  married  woman  under  the 
Babylonian  law  was  an  extremely  anomalous  one. 
Her  control  over  her  property  was  perhaps  greater 
than  can  be  found  under  the  laws  of  any  other  nation, 
until  the  changes  made  during  the  present  generation. 
Towards  her  children  also  she  stood  in  a  position  of 
great  dignity.  She  was,  however,  personally  almost 
the  slave  of  her  husband. 

The  power  of  a  father  over  his  children  was  great, 
but  not  equal  to  that  belonging  to  the  father  under 
the  Roman  law.  Adoption  was  recognized  and  be- 
came quite  common,  as  did  also  the  emancipation 
of  children. 

SECTION  5.     REAL  AND  PERSONAL  PROPERTY. 

The  Babylonian  law  clearly  distinguished  between 
real  and  personal  property,  or  perhaps  better,  between 
movable  and  immovable  property.  Land  was  only 
transferred  by  written  deeds  and  a  complicated  system 
of  conveyancing  grew  up.  One  striking  peculiarity  of 
the  Babylonian  law  of  conveyancing  was  the  right 
which  the  vendor  had  at  any  time  to  repurchase  his 
land  at  the  original  purchase  price.  This  must  have 
had  the  effect  to  greatly  unsettle  titles.  This  right, 
however,  could  be  expressly  waived  in  the  deed,  at  the 


36  LEGAL  HISTORY. 

time  the  sale  was  made,  and  we  may  presume  that  this 
was  the  customary  procedure. 

Mortgages  of  land  as  security  for  loans  were  very 
common.  One  kind  of  a  mortgage  was  in  the  form  of 
a  sale,  but  with  a  reservation  of  title  in  the  vendor 
until  a  breach  of  the  terms  of  the  agreement.  The 
antichretic  mortgage  was  the  exchange  of  the  use  of  the 
land  for  the  use  of  the  money.  It  was  in  substance 
the  same  as  the  "Welsh  Mortgage"  of  the  common 
law. 

Personal  property  was  naturally  of  great  impor- 
tance in  such  a  commercial  nation  as  Babylon.  No 
particular  form  of  sale  was  required,  possession  being 
prima  facie  evidence  of  ownership.  On  this  point  we  see 
this  system  of  law  much  in  advance  either  of  the  early 
Roman  law,  or  the  early  common  law.  Slaves  were 
one  species  of  recognized  personal  property,  but  slaves 
were  not  numerous. 

The  Babylonian  law  never  recognized  the  right  of 
a  person  to  dispose  of  his  property,  either  real  or 
personal,  by  will.  Every  property  owner,  however, 
had  the  full  right  of  disposition  of  property  during  his 
lifetime,  and  could  annex  to  a  deed  of  gift,  the  reser- 
vation of  a  life  interest  in  himself.  By  this  method  the 
object  of  a  will  could  be  accomplished. 

SECTION  6.    CONTRACT  LAW. 

The  Babylonian  law  of  Contracts  was  the  first 
highly  developed  system  on  this  branch  of  jurispru- 
dence in  the  history  of  the  world.  Many  formalities 
were  required  in  the  making  of  contracts. 

The  lack  of  slaves  in  the  country  made  the  creation 
of  the  relation  of  master  and  servant  an  important 
branch  of  contracts.  The  time  of  these  contracts  were 


THE   LAW   OF   BABYLONIA.  37 

generally  for  one  year,  and  an  advance  payment  was 
customarily  paid  to  the  servant.  The  laborer  acted 
as  a  free  agent  in  making  the  contract,  but  the  law  was 
strict  in  enforcing  them,  and  an  attempt  to  avoid  their 
performance  on  the  part  of  servants  met  with  severe 
penalties. 

Partnerships  were  common,  and  the  law  of  partner- 
ship was  very  complete.  Future  as  well  as  present 
transactions  could  be  made  the  subject  of  contract. 

SECTION  7.    BANKING  AND  ADMIRALTY  LAW. 

Banking  was  a  recognized  business  in  Babylon. 
This  business  was  probably  mainly  in  the  hands  of  the 
priesthood.  The  banker  was  considered  in  the  light 
of  an  agent  or  intermediary,  borrowing  money,  not  for 
himself,  but  for  a  third  party.  The  taking  of  interest 
was  allowed  by  law  and  the  rate  of  interest  was  high. 
Twenty  per  cent,  was  the  ordinary  interest  on  a  loan 
of  money;  when,  as  often  happened,  grain  was  lent 
to  be  repaid  by  grain,  the  rate  would  be  much  higher. 

Many  of  the  loans  made  by  Babylonian  bankers 
were  upon  the  security  of  ships  or  cargoes,  and  we  see 
here  the  beginnings  of  some  of  the  existing  principles 
of  the  modern  law  on  this  subject.  The  idea  of  the 
"bottomry"  bond  by  which  the  lender,  in  consideration 
of  an  extra  high  rate  of  interest,  loses  his  principal  if 
the  ship  be  lost,  was  recognized  by  the  Babylonians. 
This  perhaps  represents  the  legal  principle  with  the 
longest  unbroken  history. 


CHAPTER  II. 
THE  LAW  OF  GREECE. 

SECTION  8.    GREECE'S  PLACE  IN  THE  HISTORY  OP 
LEGAL  DEVELOPMENT. 

The  position  occupied  by  Greece  in  the  legal 
history  of  the  world  is  far  less  important  than  in  most 
branches  of  intellectual  activity.  The  Greeks  were 
never  great  law-makers.  What  work  was  done  by  this 
people  in  the  development  of  the  law,  was  in  the  role 
of  conservators  and  transmitters  rather  than  origina- 
tors. Very  little  that  originated  in  Greece  has  had  any 
appreciable  effect  upon  the  later  course  of  the  world's 
laws;  but  Greece  rendered  an  important  service  by 
receiving  from  Babylonia  and  the  East  much  of  what 
was  best  of  their  systems  of  jurisprudence  and  pre- 
serving this  store  for  the  nations  who  were  to  come 
later.  Thus  while  Greece  cannot  rank  with  Babylonia 
and  Rome  as  a  great  law-developing  nation,  still  her 
work  in  this  direction  cannot  be  passed  over  in  absolute 
silence  in  a  work  on  Legal  History. 

It  was  particularly  by  Rome  that  Grecian  influence 
was  felt,  and  Roman  law-makers  drew  largely  from 
Greece,  for  the  materials  for  the  jus  gentium.  What 
they  received,  however,  was  rather  the  work  of  Baby- 
lonian than  Grecian  legislators.  Grecian  philosophers, 
in  fact,  influenced  Roman  law  more  than  Grecian  law- 
makers. 

In  the  study  of  Grecian  laws,  and  public  institu- 
tions, a  difficulty  is  met  at  the  threshold  in  the  fact 

39 


40  LEGAL   HISTORY. 

that  ancient  Greece  during  the  days  of  her  independence 
was  never  one  country.  The  political  subdivisions  of 
Greece  were  generally  small  and  their  number  large. 
The  highest  stage  of  development  in  law  as  in  other 
lines  was  reached  by  Athens  and  it  is  her  law  which  is 
mainly  discussed  in  this  chapter. 

SECTION  9.    PUBLIC  LAW. 

Every  form  of  government  existed  among  the 
various  states  into  which  Greece  was  divided.  Nearly 
all  of  the  Grecian  states  seem  to  have  passed  through 
three  stages,  and  to  have  been  in  turn  monarchies,  oli- 
garchies and  democracies.  The  Greek  kingship  displayed 
many  peculiarities.  Their  conception  of  a  King,  perhaps, 
might  be  best  described  as  the  combination  of  the 
attributes  of  the  father  of  a  large  family,  and  the 
representative  of  the  Gods.  Religion  and  government 
were  ever  closely  associated  with  the  Greeks,  and 
the  laws  of  the  King  were  in  early  times  held  to  be 
the  utterances  of  the  Gods  speaking  through  a  human 
medium.  The  oligarchies,  which  followed  the  mon- 
archies, bore  more  hardly  on  the  people  than  the  rule 
of  the  kings  had.  The  oligarchies  were  in  general 
short  lived  and  during  the  period  of  Grecian  history 
most  of  the  states  were  democracies,  Sparta  being  the 
only  important  city  to  retain  the  kingly  office,  and 
even  here  the  kings  were  mere  figureheads  and  the 
important  officers  were  elected.  Sparta,  in  fact,  repre- 
sented the  nearest  approach  to  socialism  ever  put  into 
successful  operation.  In  theory  complete  equality  of 
property  existed  among  all  Spartans,  but  under  them 
appeared  a  large  conquered  population,  reduced  to 
the  position  of  serfs  and  governed  with  the  greatest 
severity. 

In  Athens  also  we  see  a  free  and  cultured  class  of 


THE   LAW   OF   GREECE.  41 

citizens  living  among  a  body  of  slaves  who  outnumbered 
them,  during  the  period  of  their  greatest  prosperity, 
nearly  ten  to  one.  Among  the  Athenians  themselves, 
democracy  was  carried  to  the  extreme  point.  The 
equality  of  all  citizens  was  emphasized  by  the  pro- 
visions for  the  choice  of  nearly  all  the  public  officials 
by  lot.  Legislative  matters  concerning  the  affairs 
of  the  State  were  passed  upon  by  popular  general 
assemblies  where  Athenian  oratory  reached  its  highest 
development. 

SECTION  10.    ADJECTIVE  LAW. 

Methods  of  court  procedure  differed  among  the 
several  Grecian  States  no  less  than  their  various  sys- 
tems of  government.  Private  suits  were  almost  un- 
known in  Sparta.  The  so-called  laws  of  Lycurgus  by 
their  provisions  for  the  community  of  property  did  away, 
in  the  main,  with  courts  and  lawyers.  There  were  no 
regular  courts,  in  the  ordinary  sense  of  the  term,  hi  that 
city. 

The  adjective  law  of  Athens,  on  the  contrary,  was 
highly  developed.  The  course  of  procedure  in  an 
Athenian  law  suit  was  divided  into  five  stages ;  1st,  the 
summons,  2nd,  the  appearance,  3rd,  the  preliminary 
hearing,  4th,  the  trial  and,  5th,  the  judgment.  The 
summons  could  be  served  by  the  plaintiff  in  person, 
who  under  certain  circumstances  could  arrest  the 
defendant.  If  upon  being  served  the  defendant  failed 
to  appear  before  the  magistrate,  he  was  defaulted.  If 
the  defendant  appeared,  it  seems  that  the  plaintiff 
must  show  that  he  had  a  good  cause  of  action  in  order 
to  have  the  case  entered  upon  the  docket  of  cases.  If 
this  was  done  the  day  of  the  preliminary  hearing  was 
determined  by  lot.  This  so-called  preliminary  hearing 
was  the  real  trial.  At  this  time  the  pleadings,  includ- 


42  LEGAL   HISTORY. 

ing  those  in  cross-actions,  were  filed,  and  witnesses 
were  examined.  The  Athenians  had  established  rules 
as  to  the  competency  of  witnesses.  Neither  close 
friends  or  known  enemies  of  either  party  could  testify. 
If  the  testimony  at  this  preliminary  hearing  was  over- 
whelming in  favor  of  either  side,  the  judge  could  decide 
the  case.  In  general,  however,  he  merely  prepared  a 
report  to  be  submitted  at  the  final  trial  before  the 
dicastery.  The  dicastery  was  in  a  sense  a  jury,  consisting 
of  a  large  but  variable  number  of  members.  Several 
hundred  might  sit  in  the  trial  of  a  case.  This  trial 
was  merely  a  display  of  oratory.  The  dicastery  voted 
twice;  first  as  to  the  merits  of  the  case,  and  next  as  to 
the  amount  of  damages.  The  vote  of  a  majority  con- 
trolled. The  execution  of  a  judgment,  as  under  the 
laws  of  most  ancient  countries,  was  mainly  left  to  the 
exertions  of  the  successful  party  himself. 

SECTION  11.    SUBSTANTIVE  LAW. 

The  Greek  laws  from  the  earliest  time  prohibited 
polygamy,  but  sanctioned  open  concubinage.  In 
Sparta  the  form  of  marriage  was  one  of  capture,  in 
Athens  that  of  a  purchase;  the  former  was  a  fiction, 
the  latter  a  reality.  The  position  of  the  wife  in  the 
household  was  a  very  low  one  except  in  Sparta.  Divorce 
was  freely  permitted  to  the  husband  and  under  strict 
conditions  to  the  wife. 

The  commercial  law  of  the  Greeks  was  mainly 
borrowed  from  the  Babylonians  through  the  Phoeni- 
cians. The  criminal  law  differed  greatly  among  the 
different  states. 

The  writings  and  speculations  of  the  Greek  philos- 
ophers on  the  science  of  law  and  government  which  was 
later  to  have  such  a  great  influence  upon  Roman  law, 
had  very  little  effect  upon  that  of  their  own  country. 


CHAPTER  III. 
ROMAN  LAW. 

SECTION  12.     IMPORTANCE  OF  THE  STUDY  OF  ROMAN 

LAW. 

It  would  be  hard  to  over-estimate  the  influence 
which  Roman  jurisprudence  has  exerted  upon  the  legal 
history  of  the  world.  Rome's  place  in  history  is 
mainly  based  upon  her  two  Titanic  creations — the 
Roman  Empire  and  the  Roman  Law.  The  first  has 
long  since  fallen  and  lives  only  in  history;  the  second, 
reaching  its  highest  development  only  after  the  fall 
of  the  Western  Empire,  surviving  the  Teutonic  con- 
quests, and  aiding  in  the  civilization  of  the  barbaric 
destroyers  of  the  Empire,  has  year  by  year  and  century 
by  century,  increased  its  power  and  influence,  until 
to-day  it  serves  as  the  basis  of  practically  all  the  legal 
system  of  two  continents  and  of  many  of  those  of 
three  others.  Never  losing  its  hold  upon  the  territory 
of  the  old  Roman  provinces  of  Europe,  it  gradually 
worked  its  way  to  the  north  and  east  over  practically 
the  whole  of  this  continent,  meeting  determined  re- 
sistance only  when  it  attempted  to  cross  the  channel 
to  the  British  Isles.  A  few  centuries  later,  in  the 
colonizing  movements  which  marked  the  dawn  of 
modern  history,  it  was  carried  over  the  seas  and 
spread,  not  only  over  the  greater  part  of  the  Americas, 
but  also  over  portions  of  the  old  continents  of  Africa 
and  Asia  and  even  to  the  far  off  Philippine  Islands. 
Even  in  our  day  we  can  see  its  constantly  spreading 

48 


44  LEGAL   HISTORY. 

limits  in  the  influence  it  has  exerted  upon  the  laws  of 
the  new  power  which  has  just  sprung  into  such  promin- 
ence on  the  Asiatic  shores  of  the  Pacific. 

Even  in  those  countries  where  the  Common  Law 
of  England  is  in  force,  many  Roman  Law  principles 
are  daily  applied  in  the  courts,  although  probably  few 
judges,  lawyers,  or  clients  appreciate  the  fact. 
SECTION  13.    EARLY  ROME. 

There  is  little  that  is  striking  or  remarkable  about 
the  early  history  of  Rome,  or  that  would  tend  to  fore- 
shadow her  future  greatness.  Her  early  institutions 
and  history  were  merely  a  counterpart  of  those  of 
hundreds  of  other  cities  of  Greece  and  Italy.  We  find 
the  same  general  family  organization,  and  the  same 
evolution  of  the  State  out  of  the  family.  As  elsewhere, 
it  is  the  union  of  families  which  constitute  the  gens 
or  clans,  the  union  of  clans  that  creates  the  tribe,  and 
the  final  union  of  the  tribes  that  gives  birth  to  the 
city  and  state.  Here,  too,  we  see  the  periods  of  the 
monarchy,  the  oligarchy  and  the  republic.  But  while 
Rome  passed  through  the  same  early  stages  as  her 
neighbors,  she  continued  to  progress  after  they  had 
ceased  to  advance.  What,  with  the  others,  was  the 
whole  course  of  their  career,  was,  with  the  future 
empire  builder,  merely  a  preparation  for  her  real  work. 

The  inhabitants  of  early  Rome  presented  two 
prominent  characteristics  which,  as  has  been  shown, 
were  among  the  most  important  causes  of  Babylonian 
greatness.  The  Romans,  throughout  their  history, 
were  pre-eminently  both  a  cosmopolitan  and  a  com- 
mercial people.  The  union  of  the  three  tribes  which 
created  the  Roman  State  gave  a  mixed  Latin  and 
Sabellian  origin  to  the  race,  while  Rome's  reputation 
as  an  asylum  for  refugees  from  all  cities  and  countries, 


ROMAN   LAW.  45 

was  the  cause  of  the  settlement  in  the  city  of  a  great 
multitude  of  people  of  all  races.  Rome's  situation 
on  the  Tiber  was  responsible  for  extensive  commercial 
dealings  with  foreign  countries,  and  this  in  turn  not 
only  broadened  her  citizens  by  contact  with  other 
races  and  new  ideas,  but  also  occasioned  the  settle- 
ment in  Rome  of  many  foreign  merchants.  The 
large  foreign  element  resident  in  Rome  was  destined 
later  to  play  a  most  important  part  in  the  political 
struggles  of  the  city  and  the  evolution  of  her  system 
of  laws. 

The  Roman  family  was  the  typical  Aryan  family. 
Wife  and  children  were  alike  absolutely  under  the 
control  of  the  husband  and  father,  who  stood  in  the 
position  of  an  absolute  monarch  on  a  small  scale.  In 
theory,  at  least,  the  father  had  the  power  of  life  and 
death  over  his  children,  even  when  the  latter  were 
of  age.  It  was  only  on  the  death  of  the  father  that 
each  son  became  himself  the  head  of  a  family.  Related 
families  constituted  the  gens.  In  theory,  all  the  families 
in  each  of  the  gens  were  thus  related,  but  in  reality, 
outside  families  would  often  be  adopted.  The  binding 
ties  in  the  gens  were  the  common  name  and  the  com- 
mon worship.  Religion,  government  and  family  re- 
lations were  all  inseparably  connected  in  ancient 
Rome.  All  grew  out  of  the  structure  of  the  typical 
Aryan  family,  with  its  system  of  ancestor  worship. 

Marriage  was  originally  by  the  confarreatio — a 
sale  accompanied  with  religious  rites.  Only  the  patri- 
cians were  at  first  capable  of  contracting  a  legal 
marriage. 

SECTION  14.    EARLY  POLITICAL  INSTITUTIONS. 

Roman  history  begins  with  the  kingdom.  The 
individual  kings  are  legendary  rather  than  historical 


46  LEGAL  HISTOEY. 

personages,  and  the  whole  history  of  this  period  is 
vague  and  uncertain.  The  overthrow  of  the  kingdom 
is  placed  at  509  B.  C.,  and  the  date  may  be  taken  as  ap- 
proximately correct,  although  no  credit  can  be  given 
to  the  historical  accounts  of  the  causes  for  this  change 
in  government.  The  king  was  superseded  by  two  con- 
suls, elected  annually.  These  consuls  possessed  prac- 
tically all  the  powers  formerly  belonging  to  the  kings, 
and  were  elected  by  the  patricians  from  their  own 
numbers.  Only  patricians  were  members  of  the  only 
popular  assembly  in  existence  at  this  period,  the 
comitia  curiata. 

The  overthrow  of  the  kings  was  probably  of  no 
benefit  to  the  lower  classes  of  society,  but  almost  im- 
mediately after  this  time  we  see  the  beginning  of  the 
long  contest  between  the  patricians  and  the  plebeians. 
The  patricians  were  the  descendants  of  the  early  in- 
habitants of  Rome,  while  the  plebeians  were  the  des- 
cendants of  those  who  came  later,  perhaps  combined 
with  the  descendants  of  the  early  slaves  or  serfs  of  the 
city.  The  internal  history  of  Rome  from  the  over- 
throw of  the  Tarquins  in  509  B.  C.  to  the  passage  of 
the  Licinian  Act  in  367  B.  C.,  mainly  centers  around 
the  contest  of  the  plebeians  for  political  and  civil 
rights.  Starting  with  no  political  and  few  civil  rights, 
we  see  this  class  emerge  from  the  contest  the  equal  of 
the  patricians  before  the  law  in  all  respects. 

SECTION  15.    FIRST  REFORMS  IN  THE  LAW. 

The  creation  of  the  comitia  centuriata  and  the 
transference  to  it  of  most  of  the  power  formerly  pos- 
sessed by  the  comiatia  curiata  marked  a  step  away 
from  the  old  line  of  demarcation;  but  as  the  comitia 
centuriata  was  so  arranged  as  to  give  the  weight  of 


ROMAN   LAW.  47 

power  to  the  richer  classes,  the  practical  benefit  to  the 
mass  of  the  plebeians  was  slight. 

More  important  were  the  reforms  of  495-94 
B.  C.  Overawed  by  the  famous  secession  of  the 
plebeians  to  the  sacred  mount,  the  patricians  were 
compelled  to  make  concessions,  and  in  addition,  to 
redressing  some  of  the  existing  injustices  as  to  the 
division  of  the  public  lands,  consented  to  the  creation 
of  two  officers  to  be  elected  from  and  by  the  plebeians, 
who  were  to  bear  the  title  of  tribunes.  The  particular 
duties  of  the  tribunes  was  the  protection  of  the  ple- 
beians, and  for  this  purpose  they  were  given  the  right 
to  forbid  or  to  "veto"  any  act  of  any  legislative  as- 
sembly or  any  public  officer.  This  was  resorted  to 
when  there  were  wrongs  of  the  plebeians  to  be  redressed. 
Here  we  have  the  origin  of  the  "veto  power,"  so 
familiar  to  us  in  our  constitution. 

By  the  Publilian  Law  passed  in  471  B.  C.,  a  dis- 
tinctively plebeian  assembly  was  created,  called  the 
comitia  tributa.  This  new  assembly  was  composed  solely 
of  plebeians  who  were  freeholders,  and  thus  excluded  the 
great  majority  of  freedmen  and  clients,  as  well  as  all 
the  patricians;  the  clients  of  patrician  families,  how- 
ever, voted  in  these  assemblies,  and  thus  enabled  the 
nobility  to  exercise  no  small  influence  on  the  result. 
The  Publilian  law  increased  the  number  of  tribunes  to 
five  (a  little  later  it  was  increased  to  ten),  and  trans- 
fered  their  election  to  the  new  comitia  tributa.  The 
general  legislative  power  of  this  assembly  was  at  first 
small,  but  it  later  acquired  jurisdiction  over  all  classes 
of  subjects. 

One  great  evil  which  remained  untouched  by  the 
reforms  already  referred  to,  arose  out  of  the  fact  that 
not  only  was  the  administration  of  justice  entirely  in 
the  hands  of  the  patricians,  but  the  members  of  this 


48  LEGAL   HISTORY. 

class  were  also  the  only  persons  having  any  knowledge 
as  to  what  the  law  was,  and  great  pains  were  taken  to 
guard  this  knowledge  from  the  plebeians.  The  in- 
justices springing  from  such  an  arrangement  were  so 
great  that  in  451  B.  C.,  ten  men,  known  as  the  decem- 
virs, were  elected  to  draw  up  a  codification  of  the  Ro- 
man Law. 

SECTION  16.    THE  LAW  OF  THE  TWELVE  TABLES. 

The  decemvirs  were  not  only  authorized  to  draw 
up  a  new  system  of  laws  for  the  city,  but  were  also 
intrusted  with  all  governmental  powers  while  they 
were  engaged  in  this  work.  The  offices  of  consul, 
tribune,  etc.,  were  temporarily  suspended.  Plebeians 
were  eligible  for  office  of  decemvir.  Ten  so-called 
tables  of  laws  were  completed  the  first  year  and  were 
engraved  on  metallic  tables  and  set  up  in  the  forum. 
The  work  of  the  decemvirs  was  not  considered  complete, 
however,  and  a  second  set  were  elected  for  another 
year.  The  product  of  their  work  was  the  last  two  of 
the  twelve  tables.  The  decemvirs  were  overthrown 
by  force  before  completion  of  this  second  year.  The 
exact  causes  and  details  of  this  event  are  unknown. 

The  twelve  tables  contained  little  that  was  new 
in  the  law.  Their  importance  lay  in  the  fact  that  the 
law  was  now  known  and  the  officials  were  obliged  to 
follow  a  known  system  instead  of  deciding  cases  ac- 
cording to  their  own  caprice.  A  copy  of  the  provisions 
of  the  twelve  tables  which  are  still  preserved,  is  con- 
tained in  Appendix  B  of  this  volume. 

SECTION    17.    CONTEST    BETWEEN    PATRICIANS    AND 

PLEBEIANS. 

Additional  rights  for  the  plebeians  were  secured 
the  following  year  by  the  Valerio-Horatian  laws, 
sometimes  called  the  Magna  Charta  of  Rome.  By 


ROMAN    LAW.  49 

these  laws,  a  right  of  appeal  was  given  from  the  de- 
cisions of  all  officials,  the  tribunes  could  assess  fines 
of  any  amount,  subject  to  the  approval  of  the  comitia 
tributa;  the  tribunes  were  also  allowed  to  sit  on  a 
bench  at  the  door  of  the  senate  house;  and  the  manage- 
ment of  the  public  funds  were  taken  away  from  the 
consuls  and  given  to  two  new  officials,  called  quaestors, 
who  were  chosen  by  the  whole  body  of  freeholders. 
At  first  quaestors  were  chosen  exclusively  from  the 
patricians,  but  in  421  B.  C.,  plebeians  were  made 
eligible  for  this  office. 

The  greatest  of  all  triumphs  obtained  by  the 
plebeians  was  by  the  passage  of  the  Licinian  Act  in 
367  B.  C.,  after  a  long  struggle  of  eleven  years.  By 
this  act  it  was  provided  that  one  consul  must  be  a 
plebeian,  the  use  of  the  public  lands  was  again  re- 
formed, plebeians  were  made  eligible  to  one  of  the 
sacred  colleges,  and  a  new  officer  known  as  a  praetor, 
or  judge,  was  created.  The  plebeians  were  still  ex- 
cluded from  holding  a  few  offices,  but  these  were 
gradually  one  by  one  thrown  open  to  them,  until  the 
two  orders  were  on  a  complete  political  equality. 
Scarcely  had  the  long  contest  between  patricians  and 
plebeians,  terminated,  however,  when  a  new  and  more 
permanent  dividing  line  appeared,  in  the  distinction 
between  rich  and  poor. 

SECTION  18.    LEGIS  ACTIONIS. 

The  early  Roman  legal  actions  were  elaborate  and 
symbolic.  The  important  forms  of  actions  were  four  in 
number:  (1)  legis  actio  per  sacramentum;  (2)  legis 
actio  per  judicis  postulationem;  (3)  legis  actio  per 
manus  inter jectionem,  and  (4)  legis  actio  per  pignoris 
capionem. 

Vol.  1—4. 


50  LEGAL  HISTORY. 

The  legis  actio  per  sacramentum  was  an  elaborate 
mock  battle  for  the  possessions  of  the  article  in  dispute, 
accompanied  by  each  party  putting  up  a  certain  sum 
as  a  wager,  known  as  a  sacramentum,  as  to  the  justness 
of  his  side  of  the  controversy.  A  judex  was  appointed 
to  hear  the  case,  and  the  form  of  his  decision  was  as  to 
the  sacramentum,  the  winning  party  receiving  back 
his  sacramentum,  while  that  of  the  losing  party  went 
to  the  State  in  the  nature  of  court  costs.  The  decision 
as  to  the  sacramentum,  of  course,  carried  with  it  the 
decision  of  the  real  question  in  issue. 

The  actio  per  judicis  postulationem  was  a  later 
action  than  that  per  sacramentum,  and  possessed 
many  advantages  over  it.  There  was  no  sacramentum 
required,  the  demand  need  not  necessarily  be  for  a 
fixed  sum,  and  there  was  no  fixed  minimum  amount 
which  must  be  involved.  The  case  was  decided  by 
arbitrators  appointed  by  the  magistrate. 

The  two  remaining  forms  of  legis  actiones,  were 
rather  forms  of  execution  than  of  law  suits.  Under 
that  of  per  manus  injectionem,  either  the  property  or 
the  person  of  the  debtor  could  be  taken  to  satisfy  the 
debt.  The  laws  governing  the  sale  into  slavery  of  an 
insolvent  debtor  were  at  first  very  harsh,  but  were 
later  greatly  modified.  The  action  per  pignoris  capi- 
onem,  corresponded  roughly  to  the  common  law  action 
of  distress  and  was  only  allowed  in  a  few  cases. 

SECTION  19.    EARLY  CONTRACT  LAW. 

The  making  of  contracts  at  Rome,  during  the 
early  period,  was  always  accompanied  with  many 
formalities.  A  sale  could  only  be  made  in  the  presence 
of  five  Roman  citizens  as  witnesses,  the  amount  to  be 
paid  was  weighed  out  by  an  official  weigher,  and  the 


ROMAN   LAW.  51 

purchaser  could  then  take  possession.  Similar  for- 
malities were  observed  in  the  creation  of  a  loan,  the 
borrower  declaring  himself  to  be  indebted  for  the  sum 
weighed  out.  An  outgrowth  of  the  same  system  was 
the  marriage  by  coemptio,  which  first  rendered  legal 
marriage  among  plebeians  possible. 

The  brief  description  of  the  Roman  law  given  in 
the  last  few  sections  show  the  early  legal  conceptions 
of  this  people  to  have  been  very  crude  and  little  suited 
to  serve  as  the  foundation  upon  which  to  build  a  world- 
wide system  of  jurisprudence.  As  a  matter  of  fact, 
this  early  system  played  little  or  no  part  in  the  after 
development  of  Roman  law.  During  the  latter  period 
of  the  Republic  a  new  system  of  jurisprudence  gradu- 
ally grew  up  in  Rome,  which  was  destined  in  time  to. 
supplant  the  older  legal  conceptions  and  to  serve  as 
the  basis  for  that  Roman  law  which  has  come  down 
to  modern  times.  It  is  necessary,  therefore,  to  turn 
to  the  history  of  the  origin  and  development  of  this 
second  system  of  jurisprudence,  known  as  the  jus 
gentium. 

SECTION  20.    Jus  GENTIUM. 

The  belief  in  the  superiority  of  one's  own  race, 
over  all  the  other  peoples  of  the  world,  is  one  which  we 
find  firmly  imbedded  in  the  minds  of  the  inhabitants 
of  all  countries,  both  ancient  and  modern.  This  belief 
in  the  superiority  of  the  race  includes  the  belief  in  the 
great  superiority  of  its  laws,  customs,  and  institu- 
tions. While  this  feeling  is  found  with  perhaps  equal 
intensity  among  the  nations  of  ancient  and  those  of 
modern  times,  still  the  effect  which  it  has  had  upon  the 
people  of  the  two  periods  has  been  strikingly  different. 
In  modern  times  its  influence  has  taken  the  direction 
of  developing  the  belief  in  what  Kipling  has  denom- 


52  LEGAL   HISTORY. 

inated  "the  White  man's  burden,"  the  tenet  of  which 
may  be  described  as  being  a  belief  that  it  is  the  duty  of 
those  races  possessed  of  higher  laws  to  force  them  upon 
all  so-called  inferior  races,  either  with  or  against  their 
will,  and  that  such  races  are  sufficiently  recompensed  by 
the  great  gain  from  such  laws  and  institutions,  for  any 
such  minor  losses  they  may  incur,  as  the  loss  of  their 
land  or  other  property.  The  same  underlying  ideas 
had  an  almost  diametrically  opposite  effect  upon  an- 
cient races.  In  the  eyes  of  all  ancient  nations  their 
own  laws  and  institutions  possessed  such  peculiar  and 
superior  merit  that  no  other  race  or  people  were  worthy 
of  them.  Each  race  therefore  jealously  guarded  its  own 
laws  to  such  a  degree  as  to  refuse  to  allow  them  to 
govern  foreigners  living  in  their  very  midst  and  under 
their  jurisdiction.  This  principle  of  the  racial  rather 
than  the  territorial  jurisdiction  of  laws,  in  fact,  con- 
tinued among  many  races  almost  down  to  the  close  of 
the  middle  ages. 

The  number  of  foreigners  settled  at  Rome,  for 
commercial  or  other  purposes,  made  the  question,  as 
to  the  laws  to  govern  litigation  affecting  resident 
foreigners,  a  most  important  one.  This  was  recognized 
at  an  early  period  by  the  appointment  of  a  new  officer, 
the  praetor  peregrinus,  to  whom  was  assigned  all 
cases  between  foreigners,  or  between  a  foreigner  and 
a  Roman,  while  suits  between  Roman  citizens  were 
left  to  the  praetor  urbanus.  The  praetor  peregrinus 
was  at  once  confronted  with  the  question  as  to  what 
system  of  laws  to  use  to  settle  controversies  which  came 
before  him.  If  both  the  litigants  were  citizens  of  the 
same  country  the  laws  of  that  country  would  be 
applied,  but  in  the  majority  of  these  cases  arising 
in  cosmopolitan  Rome,  the  suitors  would  be  of  different 
races. 


ROMAN    LAW.  53 

Under  these  circumstances  the  idea  of  a  jus 
gentium,  or  a  general  law  of  nations  occurred  to  the 
praetors.  The  original  theory  upon  which  this  system 
of  laws  was  built  was  that  there  are  certain  rules  and 
principles  which  are  common  to  the  laws  of  all  coun- 
tries, and  that  if  these  could  be  collected  together 
and  codified  a  system  would  result  which  could  properly 
be  applied  in  the  settlement  of  disputes  between 
citizens  of  any  countries.  Starting  from  this  proposi- 
tion the  praetors  set  to  work  to  develop  the  famous 
jus  gentium.  From  the  outset,  however,  the  praetors 
were  endeavoring  to  ascertain  not  what  was  common 
to  the  laws  of  other  nations,  but  rather  what  was 
best  among  them,  and  to  supplement  any  omissions 
in  the  system,  by  their  own  legislation.  Many  of  the 
ablest  lawyers  of  Rome  seemed  to  have  served  as  praetor 
peregrinus,  and  a  system  was  soon  developed  which  in 
all  respects  surpassed  any  of  the  contemporaneous  sys- 
tems of  jurisprudence. 

The  jus  gentium,  as  already  stated,  was  created 
for  the  settlement  of  the  controversies  between  foreign- 
ers, and  was  at  first  strictly  limited  to  cases  of  this 
character.  Gradually,  however,  the  Roman  citizens 
awoke  to  the  fact  that  two  systems  of  laws  were  being 
enforced  in  their  territory,  a  superior  and  inferior  one, 
and  that  they  were  carefully  guarding  the  inferior 
system  for  themselves,  and  reserving  the  superior  one 
for  the  despised  foreigners.  Shortly  after  this  we  find 
the  distinctions  between  the  two  broken  down,  and 
the  jus  gentium  furnishing  the  basis  for  a  new  and  still 
greater  system  of  Roman  jurisprudence. 

SECTION  21.    THE  EMPIRE. 

Many  causes  contributed  to  bring  about  the  fall 
of  the  Roman  Republic  in  the  first  century  before 


54  LEGAL  HISTORY. 

Christ.  The  vast  extension  of  territory  rendered  the 
system  of  popular  government  inadequate  for  existing 
conditions,  and  the  development  of  the  idea  of  an  elected 
representative  government  (the  only  system  which  ren- 
ders a  free  government  over  a  large  area  possible)  was 
still  thirteen  centuries  in  the  future.  A  second  great 
cause  was  the  vast  inequalities  of  wealth  which  arose  in 
Rome,  and  all  efforts  to  remedy  which,  met  with  com- 
plete failure.  From  the  time  of  the  fall  of  the  Gracchi, 
and  the  failure  of  their  proposed  reforms,  the  fate  of 
the  Republic  was  settled,  although  its  final  overthrow 
was  postponed  for  two  generations.  The  changes 
which  created  the  empire  were  greater  in  reality  than 
in  theory,  the  early  Emperors  were  life  consuls  and  life 
praetors,  and  retained  most  of  the  old  offices  and 
popular  assemblies,  long  after  their  independence  and 
real  authority  had  passed  away. 

SECTION  22.    THE  CONSTITUTIONS. 

The  old  popular  assemblies  for  a  period  after 
the  establishment  of  the  Empire  still  went  through  the 
form  of  passing  acts,  which  had  been  prepared  by  the 
real  governing  power,  but  in  addition  to  this  the 
Emperor  was  given  the  power  of  direct  legislation  by 
his  own  authority. 

Laws  which  owed  their  force  to  the  authority 
of  the  Emperor  were  known  as  Constitutiones  and 
may  be  divided  into  four  principal  classes,  as  follows : 

1.  "Edicts,  which  were  public  ordinances,  of 
universal  application  throughout  the  Empire.  These 
had  the  authority  of  laws,  inasmuch  as  they  were 
generally  enforced  and  applied  to  all.  In  the  earlier 
reigns  they  were  frequently  renewed,  and  they  derived 
their  authority  from  the  Emperor  as  the  praetorian 


ROMAN   LAW.  55 

edict  did  from  the  praetor.  Gradually  they  came  to 
be  held  as  permanently  binding  the  real  ground  of  their 
permanent  force,  custom  was  overlooked,  and  the 
imperial  authority  was  regarded  as  such  ground. 

2.  "Decrees,   which   were  decisions   in  judicial 
cases  brought  before  the  Emperor  as  final  court  of 
appeal.     Inasmuch  as  they  were  interpretations  of  the 
law,  they  were  regarded  as  binding  upon  all  courts. 

3.  "Rescripts,  which  were  decisions  upon  ques- 
tions of  law  submitted  by  courts  and  private  persons. 
They    were    closely    connected    with    the    pontificial 
interpretations. 

4.  "Mandates,  which  were  directions  to  officials 
in  the  exercise  of  their  offices.    These,  by  repetition 
in  the  various  instructions  sent  out  from  time  to  time 
by  the  Emperor,   became  a  source  of  general  law. 
They  were  theoretically  in  force  only  during  the  life- 
time of  the  Emperor  from  whom  they  proceeded;  but 
they  became  of  permanent  force  because  of  repetition 
and  custom."  1 

SECTION  23.    Jus  RESPONDENDI. 

A  very  unusual  source  of  laws  which  grew  into 
prominence  during  the  period  of  the  early  empire  is 
found  in  the  jus  respondendi  of  the  jurisconsults. 
The  jurisconsults,  were  leading  lawyers  to  whom  the 
Emperor  as  a  recognition  of  their  ability,  gave  the 
right  of  having  their  replies  on  legal  questions  cited 
in  court  as  authority  on  the  questions  involved.  Per- 
haps at  no  other  time  in  the  history  of  the  world  were 
the  honors  which  could  be  won  by  lawyers,  through 
scholarship  and  ability  in  their  profession,  so  great  as 

1  Lee's  Historical  Jurisprudence. 


56  LEGAL   HISTOEY. 

during  the  period  of  the  Roman  Empire,  but  the  highest 
of  all  honors  open  to  the  members  of  this  profession  was 
that  of  the  jus  respondendi. 

SECTION  24.    ROMAN  LAW  WRITERS. 

Out  of  the  ranks  of  the  jurisconsults  came  the  great 
Roman  law  writers.  The  Roman  jurists  of  the  early 
empire  were  divided  into  two  schools,  originating  in 
the  teachings  of  two  professors  of  law  of  the  second 
century.  Labeo  was  the  founder  of  the  school  of  the 
Proculians,  named  after  the  most  distinguished  pupil 
of  the  founder,  instead  of  after  Labeo  himself.  This 
school  was  conservative  in  its  tendencies  and  strove 
to  maintain  the  letter  of  the  law.  The  Sabinians  on 
the  contrary  fought  against  the  formalism  of  the  law, 
but  the  result  of  their  views  were  to  establish  more 
firmly  the  despotism  of  the  Emperor.  This  school  also 
was  named,  not  after  its  founder  Capito,  but  after  his 
successor  Sabinius.  The  final  victory  rested  with  the 
Sabinians. 

The  main  importance  of  the  Roman  law  writers 
of  this  period  lies  in  the  fact  that  it  was  from  their 
works  that  the  Codes  were  later  to  be  compiled.  The 
highest  place  among  these  writers  is  conceded  to 
Papinian  who  lived  during  the  latter  part  of  the  second 
and  the  early  part  of  the  third  centuries.  The  fate 
of  this  great  jurist  was  a  tragic  one.  Being  ordered 
by  the  Emperor  Caracalla  to  prepare  a  speech  in  defense 
of  the  former's  murder  of  his  brother  Geta,  he  replied 
that  it  was  easier  to  commit  such  an  act  than  to  defend 
it,  and  was  himself  murdered  by  the  order  of  the 
tyrant.  Among  the  other  great  Roman  law  writers 
may  be  mentioned  Gaius,  Paul,  Ulpian,  Julianus, 
Scaevola,  and  Modestine. 


ROMAN  LAW.  57 

SECTION  25.    THE  CODES. 

The  codification  of  the  Roman  law  began  near  the 
beginning  of  the  third  century.  The  great  number  of 
jurisconsults  who  had  been  writing  during  the  previous 
two  centuries  made  some  compilation  of  these  writings 
a  necessity  if  the  full  benefit  of  this  wealth  of  material 
was  to  be  obtained.  The  earliest  codes  were  those  of 
Gregorianus  and  Hermogenianus.  Only  fragments  of 
these  codes  have  been  preserved  and  the  importance  of 
these  codes  lies  mainly  in  the  fact  that  they  were  the 
pioneers  in  this  new  field. 

SECTION  26.    THE  THEODOSIAN  CODE. 

The  first  great  code  was  that  drawn  up  by  a  com- 
mission appointed  by  Theodosius  II  in  the  year  435. 
The  work  was  completed  in  438  and  comprised  all  the 
leges  generates  since  the  time  of  Constantine  the  Great. 
This  Code  was  declared  in  force  in  both  the  Western 
and  Eastern  Empires.  The  arrangement  of  the  Code 
is  far  inferior  to  that  of  its  successor,  the  Justinian 
Code.  In  the  East  the  Theodosian  Code  remained  in 
force  until  supplanted  by  the  Justinian  Code  in  the 
sixth  century.  In  the  West  it  survived  the  fall  of 
Rome  and  largely  served  as  a  basis  for  the  Romano- 
Barbarian  Codes. 

SECTION  27.    JUSTINIAN. 

The  final  culmination  of  Roman  law  is  found  in 
the  Code  of  Justinian.  Justinian,  after  whom  the 
code  takes  its  name,  ascended  the  throne  of  the  Eastern 
Empire  in  527,  and  the  following  year  took  steps  for  a 
new  and  more  complete  codification  of  the  great  body 
of  Roman  law.  The  ablest  and  most  famous  discussion 
of  this  work  is  that  contained  in  the  forty-fourth 
chapter  of  Gibbon's  "Decline  and  Fall  of  the  Roman 


58  LEGAL  HISTORY. 

Empire, "  from  which  the  following  extracts  have  been 
selected :  '  'The  vain  titles  of  the  victories  of  Justinian 
are  crumbled  into  dust;  but  the  name  of  the  legislator 
is  inscribed  on  a  fair  and  everlasting  monument.  Un- 
der his  reign,  and  by  his  care,  the  civil  jurisprudence 
was  digested  in  the  immortal  works  of  the  Code,  the 
Pandects,  and  the  Institutes:  the  public  reason  of  the 
Romans  has  been  silently  or  studiously  transfused  into 
the  domestic  institutions  of  Europe,  and  the  laws  of 
Justinian  still  command  the  respect  or  obedience  of 
independent  nations.  *  *  * 

"In  the  first  year  of  his  reign,  he  directed  the 
faithful  Tribonian,  and  nine  learned  associates,  to 
revise  the  ordinances  of  his  predecessors,  as  they  were 
contained,  since  the  time  of  Adrian,  in  the  Gregorian, 
Hennogenian,  and  Theodosian  codes;  to  purge  the 
errors  and  contradictions,  to  retrench  whatever  was 
obsolete  or  superfluous,  and  to  select  the  wise  and 
salutary  laws  best  adapted  to  the  practice  of  the  tri- 
bunals and  the  use  of  his  subjects.  The  work  was 
accomplished  in  fourteen  months;  and  the  twelve 
books  or  tables,  which  the  new  decemvirs  produced, 
might  be  designed  to  imitate  the  labors  of  their  Roman 
predecessors.  The  new  Code  of  Justinian  was  honored 
with  his  name,  and  confirmed  by  his  royal  signature; 
authentic  transcripts  were  multiplied  by  the  pens  of 
notaries  and  scribes;  they  were  transmitted  to  the 
magistrates  of  the  European,  the  Asiatic,  and  after- 
wards the  African  provinces;  and  the  law  of  the  Em- 
pire was  proclaimed  on  solemn  festivals  at  the  doors 
of  churches.  A  more  arduous  operation  was  still 
behind — to  extract  the  spirit  of  jurisprudence  from 
the  decisions  and  conjectures,  the  questions  and  dis- 
putes of  the  Roman  civilians.  Seventeen  lawyers, 


ROMAN   LAW.  59 

with  Tribonian  at  their  head,  were  appointed  by  the 
Emperor  to  exercise  an  absolute  jurisdiction  over  the 
works  of  their  predecessors.  If  they  had  obeyed  his 
commands  in  ten  years,  Justinian  would  have  been 
satisfied  with  their  diligence,  and  the  rapid  composition 
of  the  Digest  or  Pandects,  in  three  years,  will  deserve 
praise  or  censure,  according  to  the  merit  of  the  execu- 
tion. From  the  library  of  Tribonian,  they  chose  forty, 
the  most  eminent  civilians  of  former  times;  2,000 
treatises  were  comprised  in  an  abridgment  of  fifty 
books;  and  it  has  been  carefully  recorded,  that  three 
millions  of  lines  or  sentences  were  reduced,  in  this  ab- 
stract, to  the  moderate  number  of  150,000.  The 
edition  of  this  great  work  was  delayed  a  month  after 
that  of  the  Institutes;  and  it  seemed  reasonable  that 
the  elements  should  precede  the  digest  of  the  Roman 
law.  As  soon  as  the  Emperor  had  approved  their 
labors,  he  ratified,  by  his  legislative  power,  the  specula- 
tions of  these  private  citizens;  their  commentaries  on 
the  twelve  tables,  the  perpetual  edict,  the  laws  of  the 
people  and  the  decrees  of  the  senate,  succeeded  to  the 
authority  of  the  text;  and  the  text  was  abandoned  as 
a  useless,  though  venerable  relic  of  antiquity.  The 
Code,  the  Pandects,  and  the  Institutes,  were  declared 
to  be  the  legitimate  system  of  civil  jurisprudence ;  they 
alone  were  admitted  in  the  tribunals,  and  they  alone 
were  taught  in  the  academies  of  Rome,  Constantinople, 
and  Berytus.  Justinian  addressed  to  the  senate  and 
provinces  his  eternal  oracles;  and  his  pride,  under  the 
mask  of  piety,  ascribed  the  consummation  of  this  great 
design  to  the  support  and  inspiration  of  the  Deity. 

"Since  the  Emperor  declined  the  fame  and  envy 
of  original  composition,  we  can  only  require  at  his 
hands,  method,  choice,  and  fidelity,  the  humble, 
though  indispensable  virtues  of  a  compiler.  Among 


60  LEGAL   HISTORY. 

the  various  combinations  of  ideas,  it  is  difficult  to 
assign  any  reasonable  preference;  but  as  the  order  of 
Justinian  is  different  in  his  three  works,  it  is  possible 
that  all  may  be  wrong;  and  it  is  certain  that  two 
cannot  be  right.  In  the  selection  of  ancient  laws,  he 
seems  to  have  viewed  his  predecessors  without  jealousy, 
and  with  equal  regard;  the  series  could  not  ascend 
above  the  reign  of  Adrian  and  the  narrow  distinction 
of  Paganism  and  Christianity,  introduced  by  the  super- 
stition of  Theodosius,  had  been  abolished  by  the  con- 
sent of  mankind.  But  the  jurisprudence  of  the  Pan- 
dects is  circumscribed  within  a  period  of  100  years, 
from  the  perpetual  edict,  to  the  death  of  Severus 
Alexander;  the  civilians  who  lived  under  the  first 
Caesars  are  seldom  permitted  to  speak,  and  only  three 
names  can  be  attributed  to  the  age  of  the  republic. 
The  favorite  of  Justinian  (it  has  been  fiercely  urged) 
was  fearful  of  encountering  the  light  of  freedom  and 
the  gravity  of  Roman  sages.  Tribonian  condemned 
to  oblivion  the  genuine  and  native  wisdom  of  Cato,  the 
Scaevolas,  and  Sulpicius;  while  he  invoked  spirits 
more  congenial  to  his  own,  the  Syrians,  Greeks,  and 
Africans,  who  flocked  to  the  Imperial  court  to  study 
Latin  as  a  foreign  tongue,  and  jurisprudence  as  a  lucra- 
tive profession.  But  the  ministers  of  Justinian  were 
instructed  to  labor,  not  for  the  curiosity  of  antiquari- 
ans, but  for  the  immediate  benefit  of  his  subjects.  It 
was  their  duty  to  select  the  useful  and  practical  parts 
of  the  Roman  law;  and  the  writings  of  the  old  republi- 
cans, however  curious  or  excellent,  were  no  longer 
suited  to  the  new  system  of  manners,  religion,  and 
government.  Perhaps,  if  the  preceptors  and  friends  of 
Cicero  were  still  alive,  our  candor  would  acknowledge, 
that,  except  in  purity  of  language,  their  intrinsic  merit 


ROMAN   LAW.  61 

was  excelled  by  the  school  of  Papinian  and  Ulpian. 
The  science  of  the  laws  is  the  slow  growth  of  time  and 
experience,  and  the  advantage  both  of  method  and 
materials,  is  naturally  assumed  by  the  most  recent 
authors.  The  civilians  of  the  reign  of  the  Antonines 
had  studied  the  works  of  their  predecessors;  their 
philosophic  spirit  had  mitigated  the  rigor  of  antiquity, 
simplified  the  forms  of  proceeding,  and  emerged  from 
the  jealousy  and  prejudice  of  the  rival  sects.  The 
choice  of  the  authorities  that  compose  the  Pandects 
depended  on  the  judgment  of  Tribonian;  but  the  power 
of  his  sovereign  could  not  absolve  him  from  the  sacred 
obligations  of  truth  and  fidelity.  As  the  legislator  of 
the  empire,  Justinian  might  repeal  the  acts  of  the 
Antonines,  or  condemn,  as  seditious,  the  free  princi- 
ples which  were  maintained  by  the  last  of  the  Roman 
lawyers.  But  the  existence  of  past  facts  is  placed 
beyond  the  reach  of  despotism;  and  the  Emperor  was 
guilty  of  fraud  and  forgery,  when  he  corrupted  the 
integrity  of  their  text,  inscribed  with  their  venerable 
names  the  words  and  ideas  of  his  servile  reign,  and  sup- 
pressed, by  the  hand  of  power,  the  pure  and  authentic 
copies  of  their  sentiments.  The  changes  and  inter- 
polations of  Tribonian  and  his  colleagues  are  excused 
by  the  pretence  of  uniformity;  but  their  cares  have 
been  insufficient  and  the  antinomies,  or  contradictions 
of  the  Code  and  Pandects  still  exercise  the  patience 
and  subtlety  of  modern  civilians. 

"It  is  the  first  care  of  a  reformer  to  prevent  any 
future  reformation.  To  maintain  the  text  of  the 
Pandects,  the  Institutes,  and  the  Code,  the  use  of 
ciphers  and  abbreviations  was  rigorously  proscribed; 
and  as  Justinian  recollected,  that  the  perpetual  edict 
had  been  buried  under  the  weight  of  commentators, 


62  LEGAL   HISTORY. 

he  denounced  the  punishment  of  forgery  against  the 
rash  civilians  who  should  presume  to  interpret  or  per- 
vert the  will  of  their  sovereign.  The  scholars  of  Ac- 
cursius,  of  Bartolus,  of  Cujacius,  should  blush  for  their 
accumulated  guilt,  unless  they  dare  to  dispute  his 
right  of  binding  the  authority  of  his  successors,  and 
the  native  freedom  of  the  mind.  But  the  Emperor 
was  unable  to  fix  his  own  inconstancy;  and,  while  he 
boasted  of  renewing  the  exchange  of  Diomede,  of  trans- 
muting brass  into  gold,  discovered  the  necessity  of 
purifying  his  gold  from  the  mixture  of  baser  alloy. 
Six  years  had  not  elapsed  from  the  publication  of  the 
Code  before  he  condemned  the  imperfect  attempt,  by 
a  new  and  more  accurate  addition  of  the  same  work; 
which  he  enriched  with  200  of  his  own  laws,  and  fifty 
decisions  on  the  darkest  and  most  intricate  points  of 
jurisprudence.  Every  year,  or  according  to  Procopius, 
each  day  of  his  reign,  was  marked  by  some  legal  inno- 
vation. Many  of  his  acts  were  rescinded  by  himself; 
many  were  rejected  by  his  successors;  many  have  been 
obliterated  by  tune;  but  the  number  of  sixteen  Edicts, 
and  168  Novels,  has  been  admitted  into  the  authentic 
body  of  the  civil  jurisprudence.  In  the  opinion  of  a 
philosopher  superior  to  the  prejudices  of  his  profession, 
these  incessant,  and  for  the  most  part,  trifling  altera- 
tions, can  be  only  explained  by  the  venal  spirit  of  a 
prince,  who  sold  without  shame  his  judgments  and  his 
laws.  The  charge  of  the  secret  historian  is  indeed 
explicit  and  vehement;  but  the  sole  instance  which  he 
produces,  may  be  ascribed  to  the  devotion  as  well  as 
to  the  avarice  of  Justinian.  A  wealthy  bigot  had 
bequeathed  his  inheritance  to  the  church  of  Emesa; 
and  its  value  was  enhanced  by  the  dexterity  of  an 
artist,  who  subscribed  confessions  of  debt  and  promises 


ROMAN   LAW.  63 

of  payment  with  the  names  of  the  richest  Syrians. 
They  pleaded  the  established  prescription  of  thirty  or 
forty  years,  but  their  defense  was  overruled  by  a  retro- 
spective edict,  which  extended  the  claims  of  the 
church  to  the  term  of  a  century;  an  edict  so  pregnant 
with  injustice  and  disorder  that,  after  serving  this 
occasional  purpose,  it  was  prudently  abolished  in  the 
same  reign.  If  candor  will  acquit  the  Emperor  him- 
self, and  transfer  his  corruption  to  his  wife  and  favor- 
ites, the  suspicion  of  so  foul  a  vice  must  still  degrade 
the  majesty  of  his  laws ;  and  the  advocates  of  Justinian 
may  acknowledge,  that  such  levity,  whatsoever  be 
the  motive,  is  unworthy  of  a  legislator  and  a  man. 

"Monarchs  seldom  condescend  to  become  the  pre- 
ceptors of  their  subjects;  and  some  praise  is  due  to 
Justinian,  by  whose  command  an  ample  system  was 
reduced  to  a  short  and  elementary  treatise.  Among 
the  various  institutes  of  the  Roman  law,  those  of  Caius 
were  the  most  popular  in  the  East  and  West;  and  their 
use  may  be  considered  as  an  evidence  of  their  merit. 
They  were  selected  by  the  Imperial  delegates,  Tribon- 
ian,  Theophilus,  and  Dorotheus,  and  the  freedom 
and  purity  of  the  Antonines  was  incrusted  with  the 
coarser  materials  of  a  degenerate  age.  The  same 
volume  which  introduced  the  youth  of  Rome,  Con- 
stantinople, and  Berytus,  to  the  gradual  study  of  the 
Code  and  Pandects,  is  still  precious  to  the  historian, 
the  philosopher,  and  the  magistrate.  The  Institutes 
of  Justinian  are  divided  into  four  books :  they  proceed, 
with  no  contemptible  method,  from  I.  'Persons', 
to  II.  Things',  and  from  things  to  III.  'Actions'; 
and  the  Article  IV  of  'Private  Wrongs',  is  terminated 
by  the  principles  of  'Criminal  Law.' 

"The  penal  statutes  form  a  very  small  proper- 


64  LEGAL   HISTORY. 

tion  of  the  sixty-two  books  of  the  Code  and  Pandects; 
and  in  all  judicial  proceedings,  the  life  or  death  of  a 
citizen  is  determined  with  less  caution  or  delay  than 
the  most  ordinary  question  of  covenant  or  inheritance. 
This  singular  distinction,  though  something  may  be 
allowed  for  the  urgent  necessity  of  defending  the  peace 
of  society,  is  derived  from  the  nature  of  criminal  and 
civil  jurisprudence.  Our  duties  to  the  State  are 
simple  and  uniform;  the  law  by  which  he  is  condemned 
in  inscribed  not  only  on  brass  or  marble,  but  on  the 
conscience  of  the  offender,  and  his  guilt  is  commonly 
proved  by  the  testimony  of  a  single  fact.  But  our 
relations  to  each  other  are  various  and  infinite;  our 
obligations  are  created,  annulled,  and  modified  by 
injuries,  benefits  and  promises;  and  the  interpretation 
of  voluntary  contracts  and  testaments,  which  are  often 
dictated  by  fraud  or  ignorance,  affords  a  long  and 
laborious  exercise  to  the  sagacity  of  the  judge.  The 
business  of  life  is  multiplied  by  the  extent  of  commerce 
and  dominion,  and  the  residence  of  the  parties  in  the 
distant  provinces  of  an  empire  is  productive  of  doubt, 
delay,  and  inevitable  appeals  from  the  local  to  the 
supreme  magistrate.  Justinian,  the  Greek  Emperor 
of  Constantinople  and  the  East,  was  the  legal  successor 
of  the  Latian  shepherd  who  had  planted  a  colony  on 
the  banks  of  the  Tiber.  In  a  period  of  1,300  years, 
the  laws  had  reluctantly  followed  the  changes  of 
government  and  manners;  and  the  laudable  desire  of 
conciliating  ancient  names  with  recent  institutions 
destroyed  the  harmony  and  swelled  the  magnitude 
of  the  obscure  and  irregular  system.  The  laws  which 
excuse,  on  any  occasions,  the  ignorance  of  their  sub- 
jects, confess  their  own  imperfections;  the  civil  juris- 
prudence, as  it  was  abridged  by  Justinian,  still  con- 


ROMAN    LAW.  65 

tinued  a  mysterious  science,  and  a  profitable  trade, 
and  the  innate  perplexity  of  the  study  was  involved 
in  tenfold  darkness  by  the  private  industry  of  the 
practitioners.  The  expense  of  the  pursuit  sometimes 
exceeded  the  value  of  the  prize,  and  the  fairest  rights 
were  abandoned  by  the  poverty  or  prudence  of  the 
claimants.  Such  costly  justice  might  tend  to  abate 
the  spirit  of  litigation,  but  the  unequal  pressure  serves 
only  to  increase  the  influence  of  the  rich,  and  to 
aggravate  the  misery  of  the  poor.  By  these  dilatory 
and  expensive  proceedings,  the  wealthy  pleader  ob- 
tains a  more  certain  advantage  than  he  could  hope 
from  the  accidental  corruption  of  his  judge.  The 
experience  of  an  abuse,  from  which  our  own  age  and 
country  are  not  perfectly  exempt,  may  sometimes 
provoke  a  generous  indignation,  and  extort  the  hasty 
wish  of  exchanging  our  elaborate  jurisprudence  for 
the  simple  and  summary  decrees  of  a  Turkish  cadhi. 
Our  calmer  reflection  will  suggest,  that  such  forms 
and  delays  are  necessary  to  guard  the  person  ,and 
property  of  the  citizen;  that  the  discretion  of  the 
judge  is  the  first  engine  of  tyranny;  and  that  the  laws 
of  a  free  people  should  foresee  and  determine  every 
question  that  may  probably  arise  in  the  exercise  of 
power  and  the  transactions  of  industry.  But  the 
government  of  Justinian  united  the  evils  of  liberty 
and  servitude;  and  the  Romans  were  oppressed  at  the 
same  time  by  the  multiplicity  of  their  laws  and  the 
arbitrary  will  of  their  master." 


Vol.  1—5. 


CHAPTER  IV. 
OUTGROWTHS  OF  ROMAN  LAW. 

SECTION  28.    THE  FALL  OF  ROME. 

The  final  overthrow  of  the  Western  Roman  Em- 
pire occurred  in  the  year  476,  but  for  the  century  pre- 
ceding this  date  the  empire  had  existed  merely  as  a 
shadow  of  its  former  self.  On  more  than  one  occasion 
the  ancient  capital  of  the  world  was  taken  and  plund- 
ered by  barbaric  invaders,  and  one  by  one  the  prov- 
inces of  the  empire  became  the  prey  and  new  seats  of 
power  of  various  Teutonic  tribes.  Roman  institutions, 
including  Roman  law,  had  been  too  long  and  too 
firmly  planted  in  these  provinces,  however,  to  be  en- 
tirely obliterated,  by  such  conquests.  Except  in  the 
case  of  Britain,  the  conquering  race  merely  settled 
down  as  the  ruling  class  amidst  the  great  mass  of  the 
old  inhabitants  of  the  region;  and  by  their  greater 
numbers  and  their  higher  civilization,  the  conquered 
gradually  impressed  their  institutions  and  laws  upon 
their  conquerors. 

SECTION  29.    THE  BARBARIAN  CODES. 

The  century  which  followed  the  fall  of  the  Western 
Roman  Empire  witnessed  the  development  of  a  large 
number  of  Romano-Barbarian  codes,  based  in  varying 
degrees  upon  Roman  law  and  Teutonic  customs. 
Roughly  speaking,  it  might  be  said  that  the  law  of 
property  in  these  codes  was,  in  the  main,  Roman, 
while  the  law  of  persons  was,  in  the  main,  Teutonic. 

67 


68  LEGAL   HISTORY. 

"The  codes  of  principal  historic  interest  are  the 
following:  of  the  Ostrogoths,  the  Edictum  Theodorici; 
of  the  Franks,  the  Lex  Salica,  the  Lex  Ripuaria,  and 
the  Lex  Francorum  Chamarvorum;  of  the  Visigoths, 
the  Lex  Visigothorum  (in  two  codes,  one  known  as 
Forum  .Judicum  and  J^dioum  Liber,  intended  for  the 
barbarians ;  and  the  other  as  Lex  Romana,  also  known 
as  Liber  Legum,  Liber  Legum  Romanorum,  Lex 
Theodosii,  and  best  known  as  Breviarium  Alarici, 
intended  for  the  Roman  inhabitants);  and  of  the 
Burgundians,  likewise  in  two  codes,  the  Lex  Gundo- 
bada  for  the  Burgundian  invaders,  and  the  Lex 
Romana  Burgundiorum,  known  also  as  Papianus. 
In  addition  to  these  have  been  preserved  many  early 
laws,  some  which  had  been  digested  in  the  form  of  a 
code.  Among  these  are  the  codes  of  the  Alamanni, 
the  Saxons,  Frisians,  the  Thuringians,  the  Bavarians, 
the  Anglo-Saxons,  and  the  Lombards,  and  in  the  case 
of  Celtic  tribes,  the  Welsh  laws,  and  the  ancient  Brehon 
law  of  Ireland."  1 

The  code  showing  the  least  Roman  influence  was 
the  Lex  Salica;  while  the  one  which  most  closely  fol- 
lowed the  Roman  law  was  the  Ostrogothic  Code  of 
Theodoric.  These  Teutonic  codes  were,  without  ex- 
ception, racial  in  their  application  instead  of  territorial. 
In  this  respect  we  see  a  reversion  to  the  conditions 
existing  in  Rome  prior  to  the  triumph  of  the  jus 
gentium. 

SECTION  30.    RENEWED  STUDY  OF  THE  ROMAN  LAW. 

The  twelfth  century  marked  a  wonderful  revival 
in  the  study  of  the  Roman  law.  This  revival  centered 
around  the  law  schools  of  the  Italian  universities,  to 

1  Lee's  Historical  Jurisprudence,  p.  386. 


OUTGROWTHS   OF   ROMAN    LAW.  69 

which  students  flocked  from  all  parts  of  Europe.  The 
most  famous  of  all  these  schools  were  those  at  Bologna. 
To  give  to  these  Italian  schools  a  practical  monopoly 
of  this  instruction  the  teaching  of  civil  law  at  the 
University  of  Paris  wras  prohibited  by  a  papal  bull. 

So  great  did  the  interest  in  this  study  during  this 
century  become,  that  it  was  feared  by  some  that  all 
other  forms  of  study  were  to  suffer  in  consequence. 
Nor  was  this  movement  entirely  theoretical,  its  pract- 
ical side  was  shown  by  the  rapid  changes  in  the  laws 
throughout  western  Europe,  changes  seeking  to  in- 
corporate into  these  legal  systems  the  old  established 
principles  of  Roman  law. 

SECTION  31.    THE  CIVIL  LAW. 

No  European  country,  however,  could  adopt  the 
code  of  Theodosian  or  Justinian  in  its  entirety.  In 
the  rapid  changes  in  human  life  and  institutions  laws 
cannot  remain  stationary,  but  must  advance  to  meet 
new  conditions.  What  was  therefore  adopted  by  the 
European  countries  of  this  period  was  not  the  Roman 
law,  but  a  new  and  modern  system  based  upon  it,  to 
which  the  name  of  the  Civil  Law  came  to  be  applied. 
The  development  of  this  law,  like  the  work  of  the 
formation  of  the  Roman  Codes,  was  the  work  rather 
of  the  law  schools  than  of  the  law  making  powers  of 
the  State.  Early  in  the  twelfth  century  the  gloss  to 
the  Corpus  Juris  Civilis  was  produced  at  Bologna, 
and  the  glosses  of  the  various  law  professors  soon 
grew  to  an  enormous  volume.  Finally,  a  digest  of  the 
various  earlier  glosses  was  completed  by  Accursius 
and  his  sons,  which  acquired  such  reputation  that 
for  a  time  it  became  accepted  as  the  highest  of  all 
legal  authority. 

The  Civil  Law  took  various  forms  in  the  different 


70  LEGAL  HISTORY. 

countries,  but  in  all  it  retained,  and  has  retained  down 
to  the  present  day,  a  firm  foundation  of  legal  rules 
and  conceptions  taken  from  the  Roman  law  principles 
of  the  time  of  the  highest  development  of  that  wonder- 
ful system  of  jurisprudence. 

SECTION  32.    THE  CANON  LAW. 

By  the  side  of  the  Civil  Law,  there  grew  up  a 
second  system  of  laws,  known  as  the  Canon  Law. 
The  development  of  the  Canon  Law  dates  from  about 
the  fourth  century,  and  was  the  work  of  the  Western 
Church.  The  sources  of  this  law  were  the  canons  of 
the  church  synods,  the  decretals  of  the  popes,  supple- 
mented by  the  incorporation  of  many  Roman  law 
principles.  A  number  of  codes  or  compilations  of 
canons  and  decretals  were  made,  beginning  near  the 
close  of  the  fifth  century,  but  the  first  satisfactory 
treatise  on  the  whole  subject  was  only  completed 
about  the  year  1150  by  Gratian,  a  monk  and  a  pro- 
fessor of  Canon  law  at  the  University  of  Bologna. 
This  work  was  generally  known  either  as  the  Decretum 
or  the  Corpus  Juris  Canonici. 

The  work  of  Gratian  soon  became  antiquated, 
and  a  number  of  new  works  on  the  subject  followed 
each  other  in  rapid  succession.  The  first  great  official 
collection  was  published  in  1234,  under  the  authority 
of  Pope  Gregory  IX.  A  second  official  collection  of 
church  laws  was  made  under  Pope  Boniface  VIII, 
and  a  third  under  Clement  V.  These  three  collections, 
together  with  the  Decretum  Gratiani,  became  the 
basis  of  Canon  Law. 

The  Canon  Law  early  became  a  distinct  system 
of  jurisprudence,  with  ecclesiastical  courts  for  its 
enforcement  throughout  all  western  Europe. 


OUTGROWTHS  OF  EOMAN  LAW.  71 

SECTION  33.    EXTENT  OF  THE  JURISDICTION  OF  THE 

CANON  LAW. 

The  Canon  Law,  besides  controlling  the  govern- 
ment and  organization  of  the  church,  was  also  con- 
cerned with  ecclesiastical  property  and  the  cure  of 
souls.  These  courts  derived  their  jurisdiction  from 
the  church  and  not  from  the  country  in  which  they 
were  located,  and  often  came  into  conflict  with  the 
national  courts  and  government.  The  ecclesiastical 
courts  were  always  anxious  to  increase  their  jurisdic- 
tion, and  all  their  efforts  towards  this  end  were  sure 
to  meet  with  violent  opposition.2  The  height  of  their 
power  was  reached  during  the  twelfth  and  thirteenth 
centuries. 

1  See  Section  69  for  an  account  of  mon  Law  and  the  Canon  Law 

the  contest  between  the  Com-  in  England. 


CHAPTER  V. 

TEUTONIC  AND  ANGLO-SAXON  CUSTOMS  AND 

LAWS. 

SECTION  34.    THE  TEUTONIC  ORIGIN  OF  ENGLAND'S 
POLITICAL  AND  LEGAL  INSTITUTIONS. 

As  the  beginnings  of  American  political  institu- 
tions must  be  sought  in  the  earlier  home  of  the  race  in 
England,  so  in  turn  the  first  germs  of  England's  con- 
stitution and  laws  can  be  traced  to  the  still  older  home  of 
the  Anglo-Saxon  race  in  the  German  forests.  In  this 
respect  a  striking  contrast  is  to  be  seen  during  the  early 
medieval  period,  between  the  history  of  England  on 
the  one  hand,  and  that  of  France,  Spain,  or  Italy  on 
the  other.  The  inhabitants  of  all  of  these  countries 
lost  their  old  characteristics,  institutions,  and  laws 
under  the  Roman  influence.  Throughout  all  the 
western  provinces  of  the  Roman  Empire  only  Roman 
civilization  and  Roman  law  existed  during  the  latter 
period  of  the  Empire.  Upon  the  European  continent 
these  influences  were  not  eliminated  when  the  Roman 
Empire  fell  before  its  northern  invaders,  the  victorious 
Teutonic  tribes  becoming  absorbed  and  civilized,  by 
the  inhabitants  of  the  vanquished  provinces.  The 
conqueror  furnished  the  ruler,  but  the  conquered  sup- 
plied the  laws.  The  mass  of  property  passed  to  the 
Teuton,  but  the  law  governing  such  property  remained 
mainly  that  of  the  Roman.  Roman  law  and  civiliza- 
tion held  their  ground,  and  by  their  superior  merits 
forced  themselves  upon  the  conqueror.  There  is  no 

73 


74  LEGAL  HISTORY. 

hiatus  in  the  history  of  these  countries;  their  political, 
constitutional,  and  legal  history  extends  back  beyond 
the  Teutonic  to  the  Roman  Conquest.  The  Teuton 
merely  infused  a  new  element  into  the  conquered  race, 
which  had  little  influence  upon  its  political  institu- 
tions or  development.  Such  is  universally  admitted 
to  have  been  the  course  of  history  in  Gaul,  Italia,  and 
Hispania,  but  such,  in  spite  of  the  opinions  of  a  cer- 
tain school  of  historians,  was  not  the  course  of  history 
in  Britain. 

There  is  and  can  be  no  analogy  between  the  con- 
quest of  Britain  by  the  Angles,  Saxons,  and  Jutes, 
and  the  conquest  of  Gaul  by  the  Franks,  or  of  Hispania 
by  the  Goths.  While  the  latter  were  wars  of  conquest, 
the  former,  at  least  in  its  earlier  stages,  was  a  war  of 
extermination  and  settlement.  The  amount  of  time 
required  in  each  case  will  alone  prove  the  distinction. 
A  single  long  reign  was  sufficient  for  the  conquest  and 
unification  of  Gaul.  Italia  and  Hispania  fell  almost 
without  a  blow  before  barbaric  hordes  who  desired  to 
reign  over  the  inhabitants  of  the  conquered  provinces, 
rather  than  to  exterminate  them.  In  Britain,  on  the 
contrary,  the  conquest  was  the  work  of  centuries. 
The  Jutes,  under  Hengist  and  Horsa,  are  reputed  to 
have  reached  England  in  449,  and  although  the  leaders 
are  mythical,  the  date  may  be  taken  as  approximately 
correct.  The  force  of  a  united  British  resistance  was 
not  broken  until  the  victory  of  Deorham  in  577,  and  of 
Chester  in  607  cut  off  Wales  from  Cornwall  in  the 
south  and  from  Strathclyde  on  the  north;  and  even 
then  warfare  with  the  detached  fragments  of  British 
territory  still  dragged  on.  Angle  and  Saxon  were 
indeed  conquered  by  Dane  and  Norman  before  the 
last  sparks  of  Celtic  resistance  were  crushed  out  in  the 
thirteenth  century.  No  single  battle  settled  the  fate  of 


TEUTONIC  AND  ANGLO-SAXON  LAWS.  75 

Britain.  It  was  a  story  of  centuries  of  desperate  re- 
sistance, overcome  at  length  by  dogged  perserverance. 
The  Saxon  won  the  land  inch  by  inch;  but  what  he  won 
he  held  and  settled.  The  invading  hosts  were  not 
merely  a  horde  of  warriors,  such  as  followed  Alaric  or 
Atalia;  with  the  Saxon  warrior  came  his  family,  his 
customs,  and  his  laws.  Whenever  the  Briton  was 
driven  back  or  exterminated,  Christianity,  Roman 
civilization  and  Roman  law  passed  away.  The  Anglo- 
Saxon,  in  his  new  home,  worked  out  for  himself  his 
system  of  jurisprudence  as  an  evolution  of  those  germs 
of  political  life  brought  over  with  him  from  his  old 
fatherland. 

The  English  constitution  and  the  English  common 
law,  therefore,  are  not  mere  outgrowths  or  develop- 
ments from  Roman  jurisprudence.  They  are  of  inde- 
pendent and  indigenous  development.  Even  what 
few  vestiges  of  Roman  law  we  find  in  the  common  law 
are  of  later  origin;  they  were  introduced  by  the  law- 
yers who  followed  in  the  train  of  William  the  Conqueror 
and  his  successors,  and  were  not  borrowed  from  the 
ancient  Britons.  The  foreign  law  terms  in  the  English 
language  came  in  at  a  later  period,  and  are  of  Norman- 
French  and  not  Welsh  origin. 

SECTION  35.     EARLY    INSTITUTIONS  As    DESCRIBED 
IN  THE  GERMANIA. 

The  English  language,  institutions  and  laws, 
being  thus  of  nearly  purely  Teutonic  origin,  it  is  in  the 
original  home  of  the  first  Teutonic  invaders  of  Britain, 
that  the  first  beginnings  of  English  political  institu- 
tions and  English  constitutional  history  are  to  be 
found.  The  earliest  information  on  this  subject  is  de- 
rived from  Roman  sources.  Some  slight  mentions  of  the 
German  tribes  are  to  be  found  in  the  pages  of  Caesar, 
but  it  is  the  "Germania"  of  Tacitus,  which  contains 


76  LEGAL  HISTORY. 

the  first  circumstantial  account  of  the  legal  and  political 
institutions  of  the  ancestors  of  the  founders  of  the 
English  nation.  In  spite  of  the  historical  errors 
made  by  Tacitus,  caused  largely  by  his  attempts  to 
generalize  too  broadly  concerning  the  life  and  customs 
of  what  were  many  scattered  tribes,  his  work  will  ever 
remain  invaluable  to  all  students  of  English  and 
American  history  and  law. 

In  the  life  of  these  ancient  tribes,  recorded  for  the 
first  time  by  this  author,  we  find  the  germs  of  many 
of  the  later  English  and  American  institutions.  The 
political  unit  was  the  village  community,  with  its 
system  of  local  self-government.  Each  community 
stood  apart,  free  and  distinct  from  the  others.  It  was 
only  in  times  of  warfare  against  some  common  enemy 
that  the  different  communities  could  be  brought  to 
sink  their  individualities  sufficiently  to  fight  under  a 
common  leader.  The  Dux,  chosen  at  such  times, 
acquired  neither  political  power,  nor  permanent  au- 
thority of  any  kind.  As  soon  as  his  military  duty 
was  performed  he  sank  again  to  his  former  position. 
A  certain  central  power  appears  to  have  resided  in  a 
general  assembly  held  at  stated  times,  but  the  main 
power  was  in  the  assemblies  of  the  pagi  and  vici,  where 
magistrates,  for  the  purpose  of  administering  justice, 
were  chosen  from  time  to  time.  The  power  of  these 
magistrates,  however,  was  very  limited.  They  were 
not  so  much  judges  as  presidents  of  courts  of  justice 
where  the  decision  was  rendered.  The  pagi  may  also 
have  served  as  military  divisions,  each,  perhaps, 
furnishing  100  soldiers  for  war.  Among  the  most 
prominent  characteristics  of  these  tribes  was  their 
intense  love  of  liberty;  but  they  were  far  from  the 
position  of  holding  that  all  men  were  free  and  equal. 
Slaves  even  existed,  being  either  prisoners  of  war,  or 


TEUTONIC   AND   ANGLO-SAXON   LAWS.  77 

members  of  the  tribe  who  had  sold  or  gambled  them- 
selves into  slavery.  Again,  the  free  were  of  different 
classes.  There  were  the  merely  free  men  and  the 
nobles  or  principes. 

SECTION     36.    THE     ANGLO-SAXON     CONQUEST     OF 

BRITAIN. 

It  was  about  the  middle  of  the  fifth  century  that 
these  tribes  first  began  to  desert  their  continental 
homes,  for  new  settlements  in  the  British  Isles.  There 
was  no  concerted  invasion  of  Britain  under  a  single 
leader,  as  was  the  case  in  the  invasions  of  Gaul  and 
Italia.  Even  the  traditional  accounts,  which  speak 
of  a  single  band  under  a  single  leader  in  each  of  the 
different  sections,  are  undoubtedly  erroneous.  There 
were  a  series  of  conquests  and  settlements  by  many 
detached  bands,  differing  greatly  in  size  and  strength, 
but  none  of  them  large.  The  English  Kingdom  was 
only  to  be  developed  by  a  gradual  evolution.  The 
many  early  kingdoms  became  consolidated  into  seven; 
the  seven  into  three,  and  the  three  into  one.  The 
first  great  work  of  the  English  people  was  the  creation 
of  a  united  English  nation. 

The  Jutes  apparently  led  the  way  and  settled  in 
Kent,  that  part  of  all  Britain  most  easily  accessible 
to  continental  Europe.  Their  fabled  leaders  Hengist 
and  Horsa,  bore  names  which  signify  the  stallion  and 
the  mare,  and  are  symbolic  of  the  sacred  white  horse 
worshiped  by  the  race.  The  leading  seats  of  Jutish 
power  became  developed  at  Rochester  and  Canterbury, 
and  the  final  union  of  all  the  Jutish  settlements  created 
the  kingdom  of  Kent.  Here  Jutish  invasion  ended. 
The  Jutes  played  the  first  and  least  important  part  in 
the  Teutonic  conquests  of  Britain. 

After  the  Jute  came  the  Saxon,  conquering  and 
settling  from  Kent  westward  to  Cornwall  and  Wales, 


78  LEGAL   HISTORY. 

and  northward  from  the  sea  to  the  Watling  Road. 
Of  the  seven  kingdoms,  Wessex,  Essex,  Sussex,  and 
a  part  of  Mercia,  were  Saxon.  According  to  the 
chronicles  the  two  great  streams  of  Saxon  occupations 
were  the  invasion  of  the  South  Saxons,  under  Aella 
in  477,  and  of  the  West  Saxons  under  Cerdic  and 
Cynric  in  495. 

The  accounts  of  the  invasions  of  the  Angles  are 
scantier  and  less  circumstantial  than  those  of  the  Jutes 
or  Saxons,  perhaps  because  nearly  all  the  records  of 
this  period  come  from  West  Saxon  sources.  Whatever 
records  may  have  been  retained  in  Northumbria  seems 
to  have  disappeared  in  the  anarchy  of  the  eighth 
century  or  during  the  Danish  invasions  of  the  ninth. 
It  is  only  possible  to  note  the  general  course  of  the 
Angle  invasion.  Landing  at  various  points  along  the 
coast,  they  seem  to  have  pushed  far  into  the  interior, 
along  these  great  rivers  which  form  the  natural  high- 
ways of  England,  the  Humber,  the  Forth  and  others. 
Slowly  pushing  their  way  to  the  north  and  west  they 
reached  at  length  the  borders  of  Strathclyde  and  the 
Highlands  of  Scotland.  Of  the  seven  kingdoms  North- 
umbria formed  by  a  union  of  Deira  and  Bernicia,  East 
Anglia,  comprising  the  territory  of  the  north-folk  and 
the  south-folk,  and  the  greater  part  of  Mercia — the  part 
held  by  the  middle  English,  by  the  Gyrwas  and  by  the 
Southumbrians,  belonged  to  the  Angles. 

SECTION  37.    CHANGES  IN  ANGLO-SAXON  POLITICAL 

INSTITUTIONS  OCCASIONED  BY  THE  CONQUEST 

OF  BRITAIN. 

The  institutions  of  the  Jutes,  Angles,  and  Saxons 
during  this  period  are  those  of  their  ancestors  of  the 
"Germania"  with  those  changes,  which  migration  and 
conquest  naturally  made.  Long  continued  warfare 


TEUTONIC   AND   ANGLO-SAXON   LAWS.  79 

created  the  King.  Nothing  approaching  the  modern 
conception  of  a  King  was  to  be  found  while  the  tribes 
dwelt  in  Germany.  The  highest  power  was  that  of  the 
Dux,  chosen  by  the  voice  of  his  associates  and  intrusted 
with  a  carefully  limited  power,  for  a  carefully  limited 
period.  The  long  continuation  of  the  power  neces- 
sarily intrusted  to  the  chief  of  each  petty  expedition 
had  the  result  of  making  such  power  permanent. 
Kingly  power  over  minute  districts  led  the  way  through 
gradual  conquest  and  survival  of  the  fittest,  to  King- 
doms and  Kings  on  a  large  scale,  until  at  last  there 
appeared  as  a  final  culmination  the  King  and  Kingdom 
of  England.  The  kingly  power,  however,  was  for  life 
only  and  not  inheritable.  The  successor  of  the  dead 
king  was  elected  by  the  people,  or  by  the  Wittenage- 
mote,  although  the  choice  in  general  was  confined  to 
the  members  of  the  royal  family. 

Together  with  the  King  there  appeared  a  new 
nobility  and  a  new  system  of  land  ownership.  The 
comites  of  the  Dux  rose  with  the  advance  of  their 
leader.  The  new  nobility  was  apparently  composed 
of  a  union  between  part  of  the  old  nobles  and  these 
new  comites,  and  it  is  probable  that  of  the  two  classes 
the  personal  followers  of  the  Dux  fared  the  better. 
Nobility  now  came  to  mean,  something  more  than  a 
mere  status.  It  denoted  the  position  of  a  large  land- 
holder. Private  ownership  of  land  existed  from  the 
beginning  of  the  conquest  of  Britain.  Very  large 
estates  fell  to  the  Dux,  large  ones  to  the  nobility,  and 
small  estates  to  each  follower.  In  addition  there  still 
remained  large  tracts  of  unallotted  and  untilled  land 
belonging  to  the  public.  The  systems  both  of  rank 
and  land  ownership  was  still  crude ;  or,  it  might  perhaps 
be  better  said  that  no  system  had  as  yet,  been  worked 


80  LEGAL   HISTORY. 

out.  This  work  was  left  for  the  great  Teutonic  law 
givers  of  a  somewhat  later  age — for  Offa,  Ine,  Aelfred, 
Dunstan,  and  Canute. 

SECTION  38.     EARLY  POLITICAL  AND  CONSTITUTIONAL 
HISTORY  OF  ANGLO-SAXON  ENGLAND. 

The  history  of  England  from  the  first  coming  of 
the  Jutes  to  the  accession  of  Ecgberht  to  the  overlordship 
of  all  England  falls  into  three  sharply  defined  periods; 
that  of  the  many  kingdoms,  of  the  seven  kingdoms,  and 
of  the  three.  Each  of  these  periods  represent  a  dis- 
tinct phase  of  the  great  work  of  the  consolidation 
of  the  English  nation.  The  first  period  extends  to 
the  establishment  of  the  kingdom  of  Northumbria 
by  Aetherfrith,  in  588,  by  the  union  of  the  ancient 
kingdoms  of  Deira  and  Bernicia.  The  constitutional 
and  legal  history  of  this  period  is  confined  to  the  growth 
of  the  kingship,  nobility  and  system  of  land  ownership, 
and  the  gradual  evolution  of  the  seven  kingdoms  out 
of  the  numerous  petty  states  which  sprang  up  in  the 
fifth  and  the  early  part  of  the  sixth  centuries.  As  for 
the  rest  it  is  only  a  constant  story  of  war  with  Celts, 
varied  by  wars  between  the  conquerors  themselves. 
Of  civilization  little  or  none  remained  in  the  Island 
outside  of  the  ever-receding  territory  still  retained 
by  the  Britons. 

That  period  of  Anglo-Saxon  history  which  imme- 
diately follows  the  establishment  of  the  kingdom  of 
Northumbria  in  588,  differed  in  many  respects  from 
the  preceding  era.  The  most  prominent  characteristic 
of  the  earlier  period  was  the  ever-continuing  warfare 
between  Briton  and  Anglo-Saxon;  in  the  latter  period 
the  back-bone  of  British  resistance  had  been  broken 
and  the  real  contest  had  become  that  of  the  various 


TEUTONIC   AND   ANGLO-SAXON   LAWS.  81 

Teutonic  kingdoms  for  supremacy.  The  contest  with 
the  Britons  was  now  of  secondary  importance.  The 
three  Anglo-Saxon  kingdoms,  which  a  century  after 
this  period  rose  superior  to  their  rivals,  were  the 
three  whose  western  borders  were  still  flanked  by 
Celtic  neighbors,  and  who  were  thus  given  an  easier 
and  surer  scope  for  expansion  than  was  open  to  those 
who  by  their  geographical  position  could  only  come  in 
conflict  with  the  kingdoms  inhabited  by  people  of  their 
own  blood. 

Northumbria,  Mercia,  East  Anglia,  Kent,  Sussex, 
Essex,  and  Wessex  are  the  seven  kingdoms  of  the  Anglo- 
Saxon  Heptarchy,  which  we  find  at  the  close  of  the 
sixth  century.  The  rapid  progress  of  Wessex,  which 
only  a  few  years  before  seemed  to  threaten  the  political 
integrity  of  all  her  sister  states,  had  met  with  a  sudden 
check;  and  Kent  held,  for  the  time,  the  undoubted 
primacy  among  the  seven  kingdoms.  Aethelberht, 
her  king,  is  sometimes  famed  as  the  first  great  law. 
giver  of  Anglo-Saxon  England;  three  centuries  later 
Aelfred  the  Great,  mentions  him  as  one  of  the  three 
great  law  givers  from  whose  work  he  has  drawn  in  the 
completion  of  his  own  laws.  Whatever  his  laws  were 
they  have  not  come  down  to  us,  and  his  contribution 
to  the  sources  of  English  law  cannot  now  be  identified. 
It  is  through  the  reestablishment  of  Christianity  in 
England  that  his  name  is  remembered  in  history.  In 
597  Augustine  and  his  monks  reached  Kent  from  con- 
tinental Europe.  The  result  of  their  mission  was  the 
conversion  of  Anglo-Saxon  England  and  its  re-union 
with  the  civilized  world. 

The  alliance  between  Kent  and  the  Christian 
Church  secured  the  triumph  of  Christianity  but  proved 
politically  fatal  to  Kent.  Its  supremacy  among  the 

Vol.  1—6. 


82  LEGAL  HISTORY. 

English  kingdoms  passed  away  forever.  Northum- 
bria, under  the  rule  of  her  king,  Eadwine,  acquired  a 
greater  degree  of  power  than  had  been  before  attained 
by  any  Anglo-Saxon  kingdom.  This  primacy  of 
Northumbria,  however,  was  soon  disputed  by  Mercia. 
As  Northumbria  was  the  champion  of  Christianity  and 
Mercia  the  last  seat  of  the  worship  of  Thor  and  Odin, 
the  main  importance  of  the  contest  was  from  its  religi- 
ous aspect.  The  early  successes  of  Mercia  were  fol- 
lowed by  the  complete  defeat  of  this  country  in  655, 
and  the  final  victory  of  Christianity.  The  contest 
between  the  Irish  Catholic  Church  in  Northumbria 
and  the  Roman  Catholic  Church  in  the  south  was 
closed  by  the  decision  of  the  Council  of  Whitby  in  655. 
Even  to  the  present  day,  however,  the  division  of 
England  into  the  archbishoprics  of  Canterbury  and 
York  remain  as  a  witness  to  this  early  schism  in  the 
English  church,  and  to  the  inherent  conservatism  of 
the  Anglo-Saxon. 

The  work  of  the  further  consolidation  of  the  English 
kingdoms  went  on  during  the  seventh  century.  The 
kingdoms  of  Northumbria  and  Mercia  stand  out 
prominent  in  the  religious  wars  of  this  period.  A 
third  great  power  was  added  to  these  two,  when 
Wessex,  under  Ine,  who  ascended  the  throne  in  688, 
gained  the  supremacy  in  the  south  and  southwest. 
The  four  kingdoms,  Kent,  Sussex,  Essex,  and  East 
Anglia,  had  by  this  time  dropped  into  that  secondary 
position  where  they  became  an  easy  prey  to  their 
stronger  neighbors.  The  contest  for  the  possession  of 
England  was  from  this  time  on,  to  be  restricted  to 
Northumbria,  Mercia  and  Wessex. 

The  important  changes  and  advances  in  the  epoch, 
which  we  have  designated  as  the  period  of  the  seven 


TEUTONIC   AND   ANGLO-SAXON   LAWS.  83 

kingdoms  were  nearly  all  in  the  field  of  religion.  The 
period  which  followed  the  accession  of  Ine  in  688,  saw 
the  beginnings  of  legal  and  constitutional  development. 
To  this  period  belonged  two  of  the  greatest  English 
lawgivers,  Ine  of  Wessex,  and  Offa  of  Mercia. 

Under  Ine,  Wessex  reached  a  higher  degree  of 
power  than  at  any  other  time  prior  to  the  reign  of 
Ecgberht.  Somerset,  Kent,  Essex,  and  London, 
were  incorporated  into  this  kingdom.  Even  the 
power  of  Mercia  was  unable  to  keep  on  level  terms 
with  that  of  Wessex.  Ine,  is  remembered,  however, 
as  a  lawmaker  rather  than  a  conqueror.  His  greatest 
work  was  that  of  consolidation  and  organization.  We 
first  hear  of  the  existence  of  the  "Shire"  during  this 
period.  Undoubtedly,  like  all  other  English  institu- 
tions, this  territorial  and  judicial  division  was  the 
result  of  slow  evolution,  instead  of  creation  by  any 
single  man;  nevertheless,  to  Ine  properly  belong  much 
of  the  credit  for  the  completion  of  the  work.  After 
Wessex  itself  had  been  divided  into  shires,  the  con- 
quered kingdoms  each  fell  into  the  position  of  a  shire, 
under  the  central  government. 

The  aim  of  Ine  appears  to  have  been  to  check,  as 
far  as  possible,  the  lawlessness  of  his  subjects,  and  to 
substitute  the  rule  of  law  for  that  of  force.  Among 
his  laws  we  find  one  that  no  person  should  seek  redress 
for  their  injuries  by  their  own  act  until  they  had  sought 
it  in  vain  from  the  judges.  Ine  is  only  partially  success- 
ful in  this  contest  against  lawlessness  and  disregard 
of  civil  rights,  and  in  726,  worn  out  with  his  work,  he 
laid  down  his  crown. 

The  eighth  century,  after  the  resignation  of  Ine, 
is  pre-eminently  the  period  of  Mercian  supremacy. 
Under  the  rule  of  Aethelbald  and  Offa,  whose  reigns 


84  LEGAL   HISTORY. 

together  occupy  nearly  the  whole  of  this  period,  the 
power  of  Mercia  completely  overshadowed  that  of  her 
sister  kingdoms.  Civil  wars  in  Wessex,  and  anarchy 
in  Northumbria,  which  only  ceased  with  the  overthrow 
of  the  ancient  kingdom  in  the  next  century,  so  impaired 
the  strength  of  these  kingdoms  as  to  render  them  no 
longer  formidable  rivals  for  the  middle  kingdom.  The 
only  serious  reverse  sustained  by  the  Mercians,  during 
this  period,  was  their  overwhelming  defeat  at  the 
battle  of  Burford  in  754,  which  enabled  the  subject 
kingdoms  of  Kent,  Essex  and  East  Anglia  to  tem- 
porarily regain  their  independence. 

It  was  four  years  after  this  battle  that  Offa,  the 
greatest  of  all  Mercian  kings,  mounted  the  throne. 
Although  making  no  efforts  to  secure  the  conquest  of 
Wessex  or  Northumbria,  he  succeeded  in  bringing 
under  his  sway  the  other  Anglo-Saxon  kingdoms.  In 
addition  he  turned  his  arms  against  the  remaining 
Britons  and  the  Mercian  frontier  was  once  more  ad- 
vanced far  to  the  west.  Unlike,  however,  former  wars 
between  Saxon  and  Briton,  this  war  was  one  of  con- 
quest rather  than  extermination.  The  conquered 
Britons  were  allowed  to  remain  in  their  old  homes 
subject  to  the  rule  of  Offa.  The  famous  code  of  laws 
which  bears  Offa's  name,  and  which  was  one  of  the 
principal  sources  from  which  Aelfred  the  Great  bor- 
rowed in  framing  his  own  laws,  is  largely  taken  up 
with  regulating  the  relation  between  the  people  of  the 
two  races. 

It  was  during  this  reign  that  England  first  began 
to  have  dealings  with  foreign  countries.  Charles  the 
Great,  then  on  the  throne  of  France,  was  in  constant 
intercourse  with  Offa,  and  but  for  the  ability  and 
shrewdness  of  that  monarch,  would  undoubtedly  have 


TEUTONIC   AND   ANGLO-SAXON   LAWS.  85 

acquired  an  influence  over  the  various  English  king- 
doms, which  might  have  resulted  in  their  incorporation 
into  the  new  western  empire.  The  fame  and  strength 
of  the  Mercian  kingdom  during  this  period  seemed 
established  on  a  firm  basis,  but  in  reality  it  rests  only 
on  the  ability  of  a  single  man,  and  his  death,  in  796 
marked  the  termination  of  the  greatness  of  Mercia. 

SECTION  39.  THE  UNION  OF  THE  SEVEN  KINGDOMS. 
Ecgberht,  the  man  destined  to  secure  the  union 
of  all  the  Saxon  and  Angle  kingdoms,  mounted  the 
throne  of  Wessex  in  802.  He  had  spent  a  long  period 
of  exile  from  his  native  land,  at  the  court  of  Charles 
the  Great,  where  he  received  his  political  and  military 
training.  After  a  quarter  of  a  century  of  inactivity, 
broken  only  by  short  wars  with  the  Britons,  the  oppor- 
tunity of  uniting  England,  came  at  last.  A  defeat  of 
the  Mercians  in  the  invasion  of  Wessex  in  825,  en- 
couraged the  subject  kingdoms  of  the  former  to  rise  in 
rebellion.  Weakened  by  two  years  of  warfare  and 
defeated  by  East  Anglia,  Mercia  yielded  without  a 
struggle  to  Ecgberht,  when  the  latter  invaded  the 
kingdom  in  827.  A  year  later  Ecgberht  advanced 
north  into  Northumbria  and  the  ancient  center  and 
seat  of  power  in  England  welcomed  the  rule  of  the 
southern  conqueror  as  an  escape  from  the  anarchy  of 
the  past  century.  With  this  submission  of  Northum- 
bria, the  period  of  the  various  Saxon  kingdoms  ended. 
The  time  had  passed  when  Anglo-Saxon,  shut  off  from 
intercourse  with  the  rest  of  the  world,  was  to  wear  out 
his  energy  in  internecine  warfare  and  intrigue.  From 
now  on  the  scope  of  his  activities  was  to  constantly 
expand.  The  conflicts  between  Mercia,  Northumbria 
and  West  Saxon  were  to  be  superseded  by  those  of  the 
English  with  the  Dane  and  Norman. 


86  LEGAL  HISTORY. 

SECTION  40.    POLITICAL  AND  CONSTITUTIONAL  HISTORY 
OF  UNITED  ANGLO-SAXON  ENGLAND. 

The  union  of  England,  effected  by  Ecgberht,  was 
rather  the  combination  of  separate  kingdoms  under  the 
over  lordship  of  Wessex,  than  the  fusion  of  all  into  one 
common  country.  The  distinction  between  Wessex, 
Mercia,  and  Wessex  and  Northumbria  still  remained, 
in  spite  of  the  fact  that  now,  for  the  first  time,  each 
acknowledged  the  rule  of  a  common  king.  The  force 
that  finally  erased  these  ancient  racial  and  territorial 
distinctions,  and  welded  together  the  inhabitants  of  the 
seven  kingdoms  to  form  a  kingdom  and  people  of  England 
came  from  without.  The  same  course  of  events,  which 
created  a  united  English  people,  at  the  same  time 
infused  a  new  element  into  the  nation.  The  ninth 
century  witnessed  the  beginning  of  the  second  great 
Teutonic  migration  to  England.  The  first  warnings  of 
the  threatening  danger  from  the  north  came  in  the 
reign  of  Ecgberht,  but  the  full  force  of  the  storm  was 
reserved  for  his  sons  and  grandsons.  Worn  out  by  the 
hardships  and  difficulties  of  their  early  positions, 
Eathelwolf  and  his  three  eldest  sons  followed  each 
other  to  early  graves,  leaving  the  throne  of  England 
to  Ecgberht 's  youngest  grandson,  and  the  greatest  of 
all  Saxon  Kings,  Aelfred. 

It  was  in  the  year  of  871  that  this  King,  to  whom 
history  has  given  the  title  of  'The  Great"  succeeded 
his  brother,  Aethelred  upon  the  throne.  A  few  years 
of  comparative  calm  at  the  outset  of  his  reign  is  suc- 
ceeded by  the  great  Danish  invasion  of  878,  before 
which  for  a  time,  the  whole  of  England  lay  prostrate. 
With  a  different  ruler  than  Aelfred,  that  year  might 
easily  have  seen  the  end  of  the  Wessex  monarchy,  and 
the  consequent  change  in  the  course  of  future  English 


TEUTONIC  AND  ANGLO-SAXON  LAWS.  87 

history.  In  place  of  this  it  saw  the  Saxon  victory 
of  Edington,  followed  by  the  treaty  of  Wedmore, 
which  divided  England  between  Dane  and  West  Saxon. 
The  dividing  line  of  the  Watling  Road  gave  Northum- 
bria,  East  Anglia,  Essex  and  half  of  Mercia  to  the 
Danes,  while  Wessex  retained,  besides  her  own  ancient 
territory,  Kent,  Sussex,  and  southwestern  Mercia. 
Later  Aelfred  recovered  London  and  a  part  of  Mercia 
but  the  greater  part  of  the  work  of  reconquest  was 
reserved  for  his  successors. 

The  remainder  of  the  life  of  Aelfred  is  of  a  different 
character.  While  never  neglecting  to  provide  for  the 
military  defense  of  his  country,  he  appears  from  now 
on,  principally  as  the  law  giver,  the  collector  and 
revisor  of  law  codes,  the  educator  and  civilizer  of  his 
people.  The  laws  of  Aelfred  are,  in  the  main,  a  com- 
pilation of  the  laws  of  earlier  times.  He  himself 
makes  no  claim  to  innovation  or  originality.  We  find 
him  saying:  "I,  then,  Aelfred,  King,  these  (laws) 
have  gathered  and  had  many  of  them  written,  which 
our  forefathers  held,  those  that  we  liked.  And  many 
of  them  that  we  not  liked,  I  threw  aside  with  my  wise 
men's  thought,  and  nowise  held  them.  For  why  I 
durst  not  risk  of  my  own  much  in  writ  to  set,  for  why, 
it  to  me  unknown  was,  what  of  them  would  like  those 
after  us  were.  But  that  which  I  met,  either  in  Ine's 
laws,  my  kinsman,  or  in  Offa's,  the  king  of  the  Mercians, 
or  in  Aethelberts'  that  erst  of  English  Kings,  babtism 
underwent,  those  that  to  me  rightest  seemed,  these 
have  I  herein  gathered  and  the  others  passed  by.  I 
then,  Aelfred,  King  of  the  West  Saxons,  to  all  my  wise 
men  these  showed,  and  they  then  quoth  that  to  them 
it  seemed  good  all  to  hold." 

It  is  probable,  however,  that  intermixed  with  the 


88  LEGAL  HISTORY. 

ancient  laws  of  Ine  or  Offa,  appeared  much  that  was 
original  with  Aelfred  himself,  it  may  have  seemed 
to  him  wisest  to  claim  the  authority  of  precedent 
for  all  his  code,  rather  than  to  let  a  portion  of  it  rest 
solely  upon  his  own  judgment  and  decree.  At  the 
least,  to  Aelfred  is  due  the  credit  for  the  revision, 
selection  and  codification  of  the  laws  of  his  people. 
There  was  no  longer  one  set  of  laws  for  Kent,  another 
for  Sussex  and  a  third  for  Wessex.  There  was  one  law 
throughout  his  kingdom,  and  as  territory  was  from  time 
to  time  conquered  from  the  Dane,  this  territory  also 
fell  under  the  same  law.  Absolute  uniformity  there 
could  not  be;  various  local  customs  and  usages  had 
acquired  strength,  which  enabled  them  to  stand  for 
centuries  in  opposition  to  the  national  law.  Such 
exceptions,  however,  were  the  necessary  result  of  the 
times  and  detract  nothing  from  the  credit  due  to  the 
work  of  Aelfred.  The  inhabitants  of  Mercia,  of  Wessex 
and  of  Kent,  submitted  to  this  new  general  law,  the 
more  readily,  because  something  had  been  taken  from 
the  laws  of  each.  Of  the  laws  of  Northumbria  we  find 
no  trace.  Domestic  anarchy  and  foreign  invasion  had 
destroyed  the  laws  and  records  of  this  northern  king- 
dom, and  had  reduced  the  former  center  of  power, 
education  and  government  in  the  island  to  the  position 
of  secondary  importance,  which  she  was  fated  to  occupy 
in  the  future. 

Side  by  side  with  the  revision  of  the  law,  went  on 
the  work  of  reforming  the  administrative  side  of  the 
government.  For  the  better  organization  of  the  army, 
the  country  was  divided  into  military  districts.  Each 
five  hides  of  land  was  required  to  send  a  soldier  to  the 
army  and  to  provide  for  his  support.  The  host  was 
divided  into  two  halves,  one  of  which  was  in  the  field, 


TEUTONIC   AND   ANGLO-SAXON   LAWS.  89 

while  the  other  was  guarding  the  individual  burghs 
or  townships.  The  creation  of  a  fleet  provided  against 
invasion  by  seas.  Aelfred  continued  the  old  familiar 
courts,  those  of  the  hundred  and  those  of  the  shire, 
and  endeavored  to  increase  the  power  and  influence 
of  both.  It  was  his  desire  that  men  shall  no  longer 
seek  to  take  the  law  into  their  own  hands,  but  that  all 
alike  Eorl  and  Ceorl  should  be  obliged  to  yield  sub- 
mission to  the  courts. 

A  period  of  external  warfare  is  seldom  an  era  of 
constitutional  development;  and  the  years  which 
follow  the  death  of  Aelfred,  in  901,  furnish  no  exception 
to  the  rule.  The  first  half  of  the  tenth  century  was 
occupied  with  the  reconquest  of  Northern  England 
from  the  Danes.  The  work  was  begun  in  901  by 
Eadward  the  Elder,  the  warlike  son  of  Aelfred.  Before 
the  death  of  Aethelstan,  Eaward's  son  and  successor, 
in  940,  the  work  of  conquest  seemed  to  have  been 
completed,  and  all  England  once  more  united  under 
the  rule  of  Wessex.  It  soon  appeared,  however,  that 
it  has  been  merely  a  reconquest  and  not  an  incorpora- 
tion, the  supremacy  was  held  by  the  force  of  character 
of  Eadward  the  Elder,  and  Aethelstan;  and  when  in 
940  the  latter  was  succeeded  by  Eadmund,  the  first  of 
"the  six  boy  kings,"  Northern  England  again  slipped 
away  from  Wessex. 

It  was  at  this  period,  that  a  most  remarkable 
character  first  appeared  upon  the  scene  of  English 
history.  Dunstan,  the  monk  of  Glastonbury,  began 
his  public  career  during  the  reign  of  Eadmund  and 
upon  the  assassination  of  the  latter  in  946,  and  the  suc- 
cession of  his  brother  Eadred,  he  rose  at  once  to  the 
leading  place  in  English  politics;  a  position  he  was  to 
hold  save  for  the  few  years  embraced  in  the  reign  of 


90  LEGAL   HISTORY. 

Eadwig,  until  the  death  of  Eadward  the  Martyr,  in 
978.  Dunstan  stands  forth,  not  only  as  the  first,  but 
also  as  the  greatest  of  that  long  line  of  English  ecclesi- 
astical statesmen,  who  play  so  prominent  a  part  in 
English  history  for  seven  centuries. 

The  work  of  Aelfred  the  Great  for  his  country  was 
hardly  greater  or  more  many  sided  than  that  of  Dun- 
stan. In  fact,  Dunstan,  throughout  the  thirty  years 
during  which  he  held  sway  in  England,  seemed  to  have 
largely  endeavored  to  follow  in  the  paths  marked  out  by 
the  greatest  of  England's  kings.  At  the  very  outset  of 
Dunstan 's  sway  came  the  submission  of  the  Danes  and 
the  final  union  of  England;  and  then  followed  the 
greater  work  of  consolidation  and  advancement.  The 
cornerstone  of  Dunstan  'a  policy  was  to  bring  about  an 
English  rather  than  a  West  Saxon  administration.  He 
was  accused  of  showing  too  great  favor  to  the  Danes; 
and  West  Saxons,  Mercians,  Northumbrians  and  Danes 
alike  appeared  as  the  holders  of  high  positions  under 
the  government. 

The  son  and  grandson  of  Aelfred  had  been  unable 
to  appreciate  or  sympathize  with  the  former's  efforts 
for  advancement  in  law  and  learning,  but  the  work 
which  Aelf red's  descendants  could  not  do  was  taken  up 
by  Dunstan.  The  reign  of  Eadgar,  under  whom 
Dunstan 's  power  was  at  its  height,  was  the  Augustan 
period  of  Saxon  history  in  law,  in  church  development, 
and  in  learning.  "Eadgar's  laws"  the  memory  of 
which  was  to  be  cherished  in  later  time,  were  mainly 
the  work  of  Dunstan. 

The  tenth  century  was  the  witness  of  great  socio- 
logical changes  in  England.  On  the  one  hand  slavery 
was  being  gradually  crushed  out,  while  on  the  other,  the 
mass  of  the  population  were  sinking  into  the  position  of 


TEUTONIC   AND   ANGLO-SAXON   LAWS.  91 

serfs.  The  principles  of  the  feudal  system  were  at  last 
forcing  themselves  into  English  life.  It  was  not,  how- 
ever, the  feudal  system  of  the  Normans  or  of  Conti- 
nental Europe,  which  we  find  among  the  Saxons.  The 
difference  between  the  two  are  so  marked,  as  to  have 
led  many  to  deny  that  the  feudal  system  existed  in 
England  at  all,  until  its  introduction  by  William  the 
Conqueror.  This  view  is,  however,  probably  incorrect. 
The  various  aspects  and  phases  of  feudalism  are  many 
and  diverse,  as  must  necessarily  be  the  case  with  any 
institution,  which  we  find  in  so  many  lands  and  extend- 
ing through  so  many  centuries.  Such  differences  must 
arise  from  the  differing  habits  and  characteristics  of 
race,  the  slow  changes,  and  the  different  ways  in  which 
we  find  feudalism  being  introduced.  Especially  strik- 
ing is  the  difference  between  the  origin  of  feudalism 
with  Saxon  and  with  Norman.  Feudalism  began  with 
the  Normans  upon  their  invasion  of  France;  the  land 
which  was  ceded  to  the  leader,  he  in  turn  divided  among 
his  chiefs,  who  again  subdivided  it  among  their  followers; 
from  the  outset  the  possession  of  the  land  by  tenant 
or  sub-tenant  carried  with  it  the  duty  of  military 
service  and  homage.  It  has  already  been  shown  how 
different  was  the  conquest  of  Britain  by  the  Saxons. 
There  was  no  general  conquest,  no  common  leader,  no 
general  owner  of  the  soil.  Each  band  became  the  owner 
of  the  land  which  their  sword  had  conquered.  The 
relationship  of  Dux  and  Comites,  indeed,  existed,  and 
the  Dux  divided  much  of  his  land  among  his  Comites, 
who  thus  supplanted  the  old  nobilities  in  power  and 
dignity.  But  this  land  was  given  absolutely,  rather 
as  a  reward  for  past  services  than  with  the  purpose  of 
securing  services  in  the  future.  The  first  beginnings 
of  the  feudal  system  in  England  appear  in  the  reign 


92  LEGAL   HISTORY. 

of  Aelfred.  Two  causes  combined  at  this  time  to 
produce  this  result.  The  first  was  the  re-organization 
of  the  military  forces,  which  compelled  each  five  hides 
of  land  to  send  an  armed  man  to  war  and  supply  his 
expenses.  The  second  was  the  unsettled  condition  of 
the  times  which  furnished  so  little  security  to  the  small 
land  holder,  that  he  was  forced  to  seek  the  protection 
and  become  the  vassal  of  some  one  of  his  more  powerful 
neighbors.  A  landholder,  however,  who  became  a 
vassal  in  this  fashion,  would  occupy  a  far  more  advan- 
tageous position  than  in  the  case  of  one  under  the  Nor- 
man feudal  system.  In  both  cases  the  vassal  swore 
allegiance  and  the  lord  promised  protection;  but  in 
the  one  case  the  vassal  brought  the  land  to  the  lord, 
while  in  the  other  the  lord  gave  it  to  the  vassal.  In 
Normandy  the  feudal  system  existed  at  the  beginning 
and  was  the  foundation;  in  England  it  was  introduced 
after  the  existence  of  the  private  ownership  of  land  and 
after  the  development  of  a  system  of  real  estate  law. 
The  result  was,  that  in  Normandy,  the  law  governing 
the  land  was  created  to  harmonize  with  the  feudal 
system  and  was  in  fact  an  integral  part  of  it.  With 
the  Anglo-Saxons,  feudalism  was  modified  by  the  force 
of  the  existing  law  of  real  property.  The  Norman  law 
was  naturally  much  better  adapted  for  the  high  develop- 
ment of  the  feudal  system;  we  find  there  the  rule  of 
primogeniture,  and  the  rigid  restriction  on  alienation, 
which  were  absent  among  the  Anglo-Saxons.  The 
whole  tendency  of  the  age  was  towards  the  strength- 
ening of  the  feudal  system,  and  it  is  possible  that  the 
Anglo-Saxon  might  themselves  have  drawn  nearer  to 
the  feudalism  of  the  continent,  even  if  they  had  not 
been  conquered  a  century  later  by  the  most  highly 
feudalized  nation  in  Europe. 


TEUTONIC   AND   ANGLO-SAXON   LAWS.  93 

The  desire  of  Dunstan  to  form  a  single  strong 
nation  out  of  the  various  tribes  and  races  in  England 
caused  him  to  seek  to  increase  the  power  of  the  king  at 
the  expense  of  the  nobles.  His  success  in  this  direction, 
while  it  went  far  to  make  one  England  out  of  the  old 
seven  kingdoms,  secured  for  him  the  enmity  of  the 
greater  nobles.  Once  in  the  early  part  of  his  career 
during  the  reign  of  Eadwig,  he  was  driven  from  the 
country,  only  to  return  upon  the  accession  of  Eadgar, 
stronger  than  ever.  The  murder  of  Eadward  and  the 
accession  of  Eathelred  in  978,  however,  gave  the  con- 
trol of  the  government  to  his  opponents,  and  in  the  end 
forced  the  retirement  of  Dunstan. 

Of  the  four  conquests  of  England,  the  Danish 
occasioned  the  least  change  in  the  character  of  the 
inhabitants  of  England,  their  laws  and  institutions  or 
in  the  course  of  English  history.  "When  the  wild  burst 
of  the  storm  was  over,  land,  people,  government 
reappeared  unchanged.  England  still  remained  Eng- 
land; the  conqueror  sank  quietly  into  the  mass  of  those 
around  them  and  Woden  yielded  without  a  struggle  to 
Christ.  The  secret  of  this  difference  between  the  two 
invasions  (i.  e.  the  Anglo-Saxon  and  the  Danish)  was 
that  the  battle  was  no  longer  between  men  of  different 
races;  it  was  no  longer  a  fight  between  Briton  and 
German,  between  Englishman  and  Welshman.  The 
life  of  these  northern  folk  was  in  the  main  the  life  of  the 
earlier  Englishmen.  Their  customs,  their  religion, 
their  social  order  were  the  same;  they  were  in  fact 
kinsmen  bringing  back  to  an  England,  that  had 
forgotten  its  origin,  the  barbaric  England  of  its  pirate 
forefathers.  Nowhere  over  Europe  was  the  fight  so 
fierce,  because  nowhere  else  were  the  combatants  men 
of  our  blood  and  speech.  But  just  for  this  reason  the 


94  LEGAL  HISTORY. 

fusion  of  the  northern  with  their  foes  was  nowhere  so 
peaceful  and  so  complete."1  The  force  of  the  first 
stream  of  Danish  invasion  was  checked  by  the  states- 
menship  and  military  skill  of  Aelfred,  and  the  result 
was  a  division  of  England  instead  of  a  conquest; 
a  second  invasion,  resulted  in  the  complete  sub- 
jugation of  England  by  the  Danes  near  the  begin- 
ning of  the  eleventh  century.  The  great  Danish  King 
Canute,  however,  instead  of  trying  to  make  England 
Danish,  became  himself  an  Englishman.  His  ambition 
was  to  make  England  the  center  of  a  great  northern 
Empire,  which  in  size  and  power  might  rank  on  equal 
terms  with  the  Holy  Roman  Empire  to  the  south.  His 
domestic  English  policy  was  closely  based  upon  that 
of  Aelfred  and  Dunstan.  He  sought  to  weld  Dane  and 
Anglo-Saxon  into  one  nation  just  as  predecessors  had 
labored  to  unite  Northumbria,  Mercian,  and  West 
Saxon.  A  continuation  of  Canute's  policy  might  have 
accomplished  his  designs;  but  such  a  result  was  pre- 
vented by  the  character  of  his  sons,  and  their  early  and 
violent  deaths  were  followed  by  the  restoration  to  the 
English  throne  of  the  old  West  Saxon  line. 

The  accession  to  the  throne  of  Eadward  the  Con- 
fessor, marks  the  termination  of  the  period  of  Scandi- 
navian immigration  and  influence  in  England.  The 
history  of  Norway  and  Denmark  which  for  the  prevoius 
two  centuries  had  been  so  closely  united  with  that 
of  England,  now  widely  diverged.  The  dream  of 
Canute  of  a  great  northern  empire,  purely  Teutonic 
not  only  in  blood  but  in  laws  and  institutions  was  to 
fail  of  realization.  The  future  foreign  relations  of 
England  were  to  be  with  her  neighbors  across  the 
English  Channel  instead  of  the  North  Sea,  and  with 

1  Green's  History  of  England. 


TEUTONIC   AND   ANGLO-SAXON   LAWS.  95 

the  new  stream  of  immigration  which  was  about  to 
pour  itself  upon  England  were  to  come  laws  and 
institutions  of  a  different  and  non-teutonic  origin. 
Roman  law,  which  won  its  greatest  victories  on  the 
continent,  after  Rome  itself  had  fallen,  was  to  influ- 
ence, although  it  could  not  overthrow,  the  great  English 
common  law  system,  which  was  rapidly  developing  in 
England.  But,  although  England  was  again  to  be 
conquered  by  continental  invaders,  although  her  pri- 
vate law  was  to  adopt  much  of  the  civil  law,  although 
Norman  Feudalism  in  all  its  refinements  and  high 
development  was  to  succeed  the  rudimentary  feudalism 
of  the  Anglo-Saxon,  one  thing  was  to  remain  practic- 
ally unaffected.  The  constitutional  law  of  England 
was  destined  to  be  of  indigenous  origin  and  growth, 
little  affected  by  the  work  of  Norman  conquerors  or 
Roman  lawyers. 

Eadward  the  Confessor,  famous  in  history  as  the 
last  of  the  Saxon  Kings  of  England,  was  in  reality 
almost  as  much  the  first  of  the  Norman  kings.  Half 
Norman  in  blood,  more  than  half  Norman  in  his 
inclinations,  entirely  Norman  in  education,  Eadward 
in  every  way  encouraged  Norman  immigration  and 
prepared  the  way  for  the  Norman  coniquest.  The  whole 
reign  of  Eadward  the  Confessor,  was  a  continual 
conflict  between  the  influence  of  the  foreign  favorites  of 
the  king,  on  the  one  side,  and  the  national  English 
spirit  on  the  other,  led  and  protected  by  the  House  of 
Godwin. 

The  reign  of  Eadward  the  Confessor  was  likewise 
one  of  disintegration  and  an  undoing  of  the  work  of 
consolidation  of  Eadward,  Aelfred,  Dunstan,  and 
Canute.  The  Kingdom  became  divided  into  the  four 
great  earldoms  of  Wessex,  East  Anglia,  Mercia,  and 


96  LEGAL   HISTORY. 

Northumbria.  With  the  rise  of  the  power  of  the  earls, 
united  England  gradually  passed  away.  At  this 
period  it  was  the  earls,  who  stood  for  the  English 
people,  while  the  king  had  become  the  mere  creature 
of  foreign  favorites.  But  the  effect  of  the  growing 
power  of  the  earls,  had  it  not  been  checked  by  a  foreign 
conqueror,  would  have  been  to  throw  England  back 
into  the  position  which  she  had  held  during  the  old 
rivalry  of  the  seven  or  of  the  three  kingdoms. 

SECTION  41.    THE  SAXON  WITENAGEMOTE. 

The  Saxon  kingdom  was  never  an  absolute  mon- 
archy. The  power  of  the  Anglo-Saxon  King,  whether 
it  be  during  the  period  of  the  many  kingdoms,  of  the 
seven,  of  the  three,  or  of  the  one,  was  always  limited 
by  his  Witenagemote  or  Great  Council.  Centuries 
before,  while  Angle  and  Saxon  were  yet  living  in  their 
continental  homes  we  see  the  forerunner  of  the  Wite- 
nagemote in  the  Folkmoot,  or  assembly  of  the  free 
men  of  the  tribes.  In  the  pages  of  Tacitus  we  read 
that  while  the  principes  disposed  of  all  the  ordinary 
business,  matters  of  great  importance  were  submitted 
to  the  General  Assembly.  In  the  primitive  kingdoms 
in  which  the  Teutonic  system  originated,  the  State 
Assembly  still  appears  as  a  Folkmoot  showing  the  will 
of  the  whole  people  in  arms.  In  the  structure  of  the 
Folkmoot  there  is  no  departure  from  primitive  tradi- 
tions. In  course  of  time,  however,  the  Folkmoots 
became  the  Witenagemotes,  and  were  no  longer  the 
great  popular  assemblies  of  an  entire  nation  but  simply 
aristocratic  assemblies,  composed  only  of  the  great 
men  of  the  kingdom.  It  is  impossible  to  determine 
at  exactly  what  period  this  change  was  accomplished; 
it  was  undoubtedly  a  gradual  one,  nor  is  it  possible  to 
determine  with  any  degree  of  exactness,  the  composi- 


TEUTONIC   AND   ANGLO-SAXON    LAWS.  97 

tion  of  the  Witenagemote  at  any  given  time.  Its  con- 
stituent elements  seem  to  have  been  in  the  main,  the 
eorldormen,  the  archbishops  and  bishops,  the  king's 
officers  and  some  of  the  lower  nobility  or  thanes.  The 
attendance  upon  these  assemblies  may  have  been  par- 
tially regulated,  at  tunes,  by  the  number  who  were 
able  to  stand  the  expenses  of  the  journey;  distance,  and 
the  hardships  of  travel,  perhaps,  did  more  than  the  King 
towards  keeping  down  the  attendance  at  the  Witen- 
agemote. The  only  relic  of  its  former  popular  char- 
acter, lay  at  last  in  the  ring  of  citizens  who  surrounded 
the  great  men  of  the  country  at  Winchester,  and  who 
shouted  their  "ayes"  and  "nays"  at  the  election  of 
the  King.  The  power  of  the  Witenagemote  was  at  all 
periods  of  the  Saxon  history  large;  it  could  elect  or 
depose  the  King;  to  it  belonged  the  administration  of 
the  higher  justice;  the  imposition  of  taxes;  the  making 
of  laws;  the  conclusion  of  treaties;  the  control  of  wars, 
and  the  disposal  of  public  lands,  and  appointment  of 
court  officers  and  officers  of  state.  Altogether,  the 
Witenagemote  served  a  double  purpose ;  that  of  check- 
ing the  power  of  the  King,  and  that  of  uniting  people 
and  preventing  any  undue  usurpation  of  power  by  any 
of  the  great  earls  or  eoldermen.  The  growth  of  the 
great  earldoms  in  the  reign  of  Edward  the  Conqueror 
lessened  the  power  of  the  Witenagemote  as  well  as 
that  of  the  King. 

SECTION  42.    THE  ANGLO-SAXON  PRIVATE  LAW. 

The  private  law  of  the  Anglo-Saxon  was  a  very 
different  system  from  that  which  grew  up  after  the 
Norman  Conquest.  The  loose  feudalism  of  the  coun- 
try had  little  or  no  influence  upon  its  system  of  land 
ownership  and  the  numerous  complicated  tenures  of  a 

Vol.  1—7. 


yo  LEGAL  HISTORY. 

later  period  were  absolutely  unknown.  Land  owner- 
ship was  of  two  kinds;  there  was  folc-land  and  boc- 
land.  Much  discussion  has  arisen  over  the  nature 
of  the  estate  in  folc-land.  Many  writers  translating  the 
term  too  literally,  have  taken  it  as  meaning  land 
belonging  to  the  public.  Such  an  idea  is  undoubtedly 
erroneous.  Practically  all  land  granted  out  during 
the  early  Anglo-Saxon  period  was  folc-land.  Folc- 
land  can  probably  be  better  translated  as  family  land 
rather  than  public  land.  It  appears  to  have  been 
land  in  which  all  members  of  the  family  had  certain 
rights  and  which  could  not  be  entirely  alienated  by  the 
holder  either  by  will  or  deed.  Pole-land  was  not 
evidenced  by  written  instruments,  it  was  held  by 
custom.  Boc-land,  was  land  granted  by  written 
instrument;  it  only  becomes  known  in  a  later  period 
of  Saxon  history  and  was  at  first  only  held  by  the 
church.  Gradually,  however,  it  came  to  be  held  by 
private  persons.  The  control  of  the  owner  over  boc- 
land  was  absolute.  He  could  either  sell  it  during  his 
life  or  will  it  after  his  death.  In  the  right  of  the  owner 
to  dispose  of  real  property  by  will,  and  in  the  absence 
of  any  system  of  premogeniture,  the  Anglo-Saxon  law 
much  more  closely  resembles  modern  American  law, 
than  does  the  later  Norman  law. 

Contract  law  among  the  Anglo-Saxon  was  almost 
entirely  confined  to  the  regulation  of  sales  of  personal 
property.  Torts  were  still  a  branch  of  criminal  law. 
In  the  same  action  the  Court  would  impose  the  pay- 
ment both  of  "wer"  and  "wite"  upon  the  culprit; 
the  wer  going  to  the  injured  party,  the  wite  to  the 
State. 

The  main  courts  were  the  local  county  and  hun- 
dred courts  which  all  freemen  were  bound  to  attend. 


TEUTONIC   AND   ANGLO-SAXON    LAWS.  99 

"As  to  procedure,  the  forms  were  sometimes  com- 
plicated, always  stiff  and  unbending.  Mistakes  in 
form  were  probably  fatal  at  every  stage.  Trial  of 
questions  of  fact,  in  anything  like  the  modern  sense, 
were  unknown.  Archaic  rules  of  evidence  make  no 
attempt  to  apply  any  measure  of  probability  to  in- 
dividual cases.  Oath  was  the  primary  mode  of  proof, 
an  oath  going  not  to  the  truth  of  specific  fact,  but  to 
the  justice  of  the  claim  or  defense  as  a  whole.  The 
number  of  persons  required  to  swear  varied  according 
to  the  nature  of  the  case  and  the  rank  of  the  persons 
concerned.  Inasmuch  as  the  oath,  if  duly  made,  was 
conclusive,  what  we  now  call  the  burden  of  proof  was 
rather  a  benefit  than  otherwise  under  ancient  Germanic 
procedure.  The  process  of  clearing  oneself  by  the  full 
performance  of  the  oath  which  the  law  required  in  the 
particular  case  is  that  which  later  medieval  authorities 
call  making  one's  law,  facere  legem.  It  remained 
possible,  in  certain  cases,  down  to  quite  modern  times. 
An  accused  person  who  failed  in  his  oath,  by  not  hav- 
ing the  proper  number  of  oath-helpers  prepared  to 
swear,  or  who  was  already  disqualified  from  clearing 
himself  by  oath,  had  to  go  to  one  of  the  forms  of  ordeal 
in  the  later  Anglo-Saxon  period.  Down  to  the  ninth 
century  the  opposition  of  the  church  appears  to  have 
kept  ordeal  outside  the  recognized  law."2 

'Pollock  and  Maitland's  History  of  English  law,  Vol  1,  p  15.  1st  Edition. 


CHAPTER  VI . 

CONSTITUTIONAL  AND   POLITICAL   HISTORY 
OF  ENGLAND   FROM   THE   NORMAN  CON- 
QUEST TO  THE  REIGN  OF  GEORGE  III. 

SECTION  43.    THE  NORMAN  CONQUEST. 

The  merits  of  the  contest  between  William  of 
Normandy  and  Harold,  Earl  of  Wessex,  for  the  English 
throne,  depended  upon  the  question  whether  or  not 
the  office  of  King  of  England  was  to  a  certain  degree 
an  elective  office ;  whether  it  was  an  institution  created 
for  the  public  good  and  over  which  the  people  had 
reserved  to  themselves  a  certain  degree  of  control,  or 
whether  the  kingship  was  merely  a  species  of  property, 
the  accession  to  which  was  to  be  governed  by  the  same 
laws  which  determined  the  succession  to  an  estate  in 
real  property.  The  claim  of  Harold  to  the  throne 
rested  upon  his  election  by  the  Saxon  Witenagemote; 
that  of  William  upon  his  relationship  to  Edward  the 
Confessor  and  that  monarch's  recognition  of  him  as 
his  heir.  The  decisive  battle  of  Senlac  ended  in  the 
death  of  Harold  and  at  once  gave  to  the  William,  the 
control  of  a  large  portion  of  the  country  including 
London.  His  later  campaigns  extended  his  authority 
over  the  rest  of  the  realm.  History,  in  giving  to  the 
Duke  of  Normandy  the  title  of  William  the  Conqueror, 
accurately  described  the  ground  upon  which  his  claim 
to  the  throne  of  England  was  in  reality  based.  Wil- 
liam, however,  preferred  to  consider  himself  as  the 
rightful  King  of  England  by  the  nomination  of  his 

101 


102  LEGAL  HISTORY. 

predecessor,  and  to  regard  his  victories,  not  as  those 
of  conquest  of  a  foreign  country,  but  as  the  overthrow 
of  traitors  in  rebellion  against  their  rightful  lord. 

SECTION    44.    CHANGES    CAUSED    BY    THE    NORMAN 

CONQUEST. 

It  is  in  the  light  of  this  position  thus  taken  by 
William  that  we  must  view  his  dealings  with  the  new 
country  which  the  fortune  of  war  had  placed  under  his 
control.  It  was  never  his  desire  to  make  many  radical 
changes  in  the  construction  of  English  government, 
or  to  force  Norman  institutions,  with  one  great  excep- 
tion, upon  the  English  people.  His  power  as  King  of 
England  was  greater  than  it  had  been  as  Duke  of 
Normandy,  and  he  was,  in  the  main,  satisfied  to  let 
"well  enough  alone."  One  great  defect,  however, 
in  the  English  system  was  clearly  seen  by  William. 
It  was  a  defect  of  whose  existence  in  the  past  he  had 
no  reason  to  complain,  for  it  had  been  owing  to  the 
existence  of  this  defect,  that  victory  had  come  to  him 
at  Senlac.  This  very  reason,  however,  made  him 
determine  to  remedy  it  for  the  future.  The  great 
defect  in  Anglo-Saxon  political  organization  was  its 
failure  to  provide  any  satisfactory  military  organiza- 
tion. To  remedy  this  William  proceeded  to  introduce 
the  Normal  Feudal  System  into  England. 

SECTION  45.     THE  FEUDAL  SYSTEM. 

It  has  been  said  that  if  Anglo-Saxon  England  had 
possessed  the  Feudal  system,  it  had  been  in  a  rudi- 
mentary degree,  and  in  a  form  which  signally  failed 
to  provide  for  the  creation  of  a  military  organization. 
The  introduction  of  the  Norman  Feudal  System,  which 
remedied  this  defect,  was  rendered  easy  by  treating 
as  traitors  all  those  who  opposed  the  ascension  of 


CONSTITUTIONAL   HISTORY   OF   ENGLAND.  103 

William  the  Conqueror  to  the  throne,  and  confiscating 
their  property.  In  this  manner  nearly  all  the  land  of 
England  passed  in  the  control  of  the  King,  who  divided 
it  among  his  followers,  under  the  system  of  land  tenure 
and  military  service  which  they  were  already  ac- 
customed to  in  Normandy.  A  few  changes  were  made, 
however,  in  the  details  of  the  Feudal  system,  with 
the  intention  of  counteracting  the  disintegrating 
tendencies  which  had  begun  to  make  themselves 
manifest  in  Normandy.  The  sub-tenants  were  obliged 
to  swear  fealty  to  the  King  as  well  as  to  their  immediate 
lord,  while  the  manors  which  he  bestowed  upon  his 
barons  were  scattered  over  the  kingdom  so  that  in  no 
one  district  should  the  territory  of  any  one  man  be 
great  enough  to  tempt  him  to  rebellion. 

William  continued  to  call  the  ancient  national 
assembly  at  the  accustomed  times  and  places;  these 
were  attended  by  the  archbishops,  abbotts,  earls, 
thanes,  and  knights.  With  the  growth  of  the  Feudal 
system,  however,  this  national  council  gradually 
changed  from  the  old  Saxon  Witenagemote,  into  the 
Curia  Regis,  an  assembly  of  Feudal  barons.  William 
also  continued  in  force  the  so-called  laws  of  Edward 
the  Confessor;  by  this  should  be  understood  the  laws 
that  were  observed  during  the  reign  of  that  king,  i.  e., 
the  laws  of  Dunstan  and  Canute.  Some  changes  he 
was  necessarily  obliged  to  make  in  these  laws,  but  the 
number  of  these  changes  were  surprisingly  few.  Al- 
though the  Normans  and  English  were  considered 
equal  in  law,  a  distinction  was  allowed  in  some  in- 
stances. The  Normans  were  accustomed  to  trial  by 
the  wager  of  battle;  the  Anglo-Saxon  by  the  ordeal 
and  the  compurgation.  Each  race  was  permitted  in 
general  trial  by  its  own  customs.  The  lives  of  the 


104  LEGAL   HISTORY. 

Normans  were  protected  by  heavy  fines  levied  upon 
any  hundred  in  which  a  Norman  was  found  murdered. 
Capital  punishment  and  the  sale  of  men  into  foreign 
slavery  were  prohibited.  The  civil  and  ecclesiastical 
jurisdiction  of  the  courts  of  law  were  separated,  but, 
except  for  the  absence  of  the  bishop,  the  county  and 
hundred  courts  were  constructed  nearly  as  formerly. 

SECTION  46.    THE  NORMAN  KINGS. 

The  reign  of  William  Rufus,  the  second  of  the 
Norman  Kings  of  England,  was  notable  mainly  for  the 
King's  wasteful  expenditure  of  money  obtained  by 
tyrannical  exactions  from  the  people,  and  for  the 
beginning  of  the  long  struggle  between  the  royal  and 
feudal  powers  which,  playing  the  one  off  against  the 
other,  brought  each  party  at  tunes  to  the  point  where 
they  were  compelled  to  seek  aid  from  the  commonalty 
of  England;  it  was  to  these  causes  more  than  to  any 
other  that  the  revival  of  the  liberties  of  the  English 
people  after  the  Norman  conquest  can  be  traced. 
Upon  the  death  of  William,  the  disputed  succession 
of  Henry  the  First  to  the  throne,  threw  him  for  support 
upon  the  English  people.  With  their  assistance  Henry 
was  enabled,  not  only  to  make  good  his  claims  to  the 
throne  of  England,  against  that  of  his  brother  Robert, 
but  also  to  wrest  from  the  latter  his  hereditary  Duchy 
of  Normandy,  and  to  resist  the  power  of  the  great 
feudal  barons  of  England.  His  concessions  to  the 
people  were  contained  in  his  Charter  of  Liberties,  a 
more  liberal  document  than  the  Magna  Charta,  but 
one  which  soon  became  generally  disregarded. 

The  reign  of  Henry  the  First  was,  on  the  whole, 
despotic;  he  was  not  a  lawgiver  nor  did  he  entrust  the 
National  Council  with  any  power  of  legislating.  He, 


CONSTITUTIONAL  HISTORY   OF   ENGLAND.  105 

however,  did  much  towards  organizing  the  judicial 
system  of  the  country,  leading  the  way  for  the  more 
important  and  far  reaching  reforms  of  the  second 
Henry.  Henry  the  First  also  granted  a  charter  to  the 
boroughs  and  the  board  guilds,  both  of  which  were 
afterwards  to  play  an  important  part  in  strengthening 
the  commonalty  of  England.  With  the  twenty  years 
of  anarchy  incident  to  the  disputed  succession  between 
Stephen  and  Matilda,  the  fortunes  of  war  swayed  back- 
wards and  forwards  between  the  contesting  parties 
and  was  finally  ended  by  the  conditions  of  the  Treaty 
of  Wallingford,  giving  the  throne  to  Stephen,  and  the 
succession  to  Henry,  son  of  Matilda.  Throughout 
the  whole  period,  whoever  for  the  moment  sat  upon 
the  English  throne,  the  English  nobles  seized  the  op- 
portunity offered  by  the  troubled  tunes  to  strengthen 
their  position  and  to  extend  their  power  and  privileges, 
both  at  the  expense  of  the  royal  prerogative  and  the 
rights  of  the  people.  It  was  the  undoing  of  the  cen- 
tralizing work  of  Henry  the  First,  and  more. 

SECTION  47.    LEGAL  REFORMS  OF  HENRY  THE  SECOND. 

The  nationalization  of  England  was  finally  ac- 
complished during  the  reign  of  Henry  II.  From  the 
first  landing  of  Hengist  and  Horsa,  the  unification  of 
the  various  divergent  races  inhabiting  England  had 
constantly  been  one  of  the  great  problems  presented 
to  all  English  rulers.  Scarcely  had  the  task  seemed 
to  be  performed  than  a  new  immigration  would  create 
a  new  aspect  of  the  same  problem.  Scarcely  had 
Angles,  Saxons,  and  Jutes  been  united  under  a  com- 
mon rule  than  the  invasion  from  the  north  brought 
the  contest  between  Anglo-Saxon  and  Dane.  The 
fusion  of  these  races  only  slightly  preceded  the  Norman 


106  LEGAL   HISTORY. 

invasion.  The  bitterest  of  all  contests,  that  between 
Saxon  and  Norman,  had  not  yet  ceased  to  exist  by  the 
time  of  the  accession  of  Henry  II.  The  Angevin 
descent  of  Henry  II  had  the  fortunate  effect  of  causing 
the  new  King  to  sympathize  neither  with  the  Norman 
or  the  Saxon  as  against  the  other,  with  the  result  that 
during  his  reign  all  disturbances  between  the  two 
races  gradually  passed  away  and  the  two  became 
gradually  fused  into  a  new  united  nation. 

The  first  great  problem  presented  to  the  new  ruler 
was  the  subjugation  of  the  English  barons,  who  during 
the  recent  disturbances  had  attempted  to  advance 
their  position  from  that  of  English  subjects,  into  that 
of  semi-independent  feudal  lords.  The  successful  ter- 
mination of  this  task  left  him  at  liberty  for  his  greatest 
work  of  organizing  and  developing  the  English  judicial 
system.  A  brief  summary  of  the  work  done  along  this 
line  during  his  reign  is  as  follows :  the  judicial  duties 
of  the  Curia  Regis  were  first  separated  from  its  legisla- 
tive and  executive  duties,  and  a  further  division  of 
that  judicial  body  was  made  into  the  three  branches  of 
the  Exchequer,  Common  Pleas,  and  King's  Bench. 
The  itinerant  justices  or  justices  in  eyre  were  regularly 
established,  later  in  this  reign  being  succeeded  by  the 
judges  of  Assize  and  Nisi  Prius.  In  1176  the  country 
was  first  divided  into  regular  judicial  circuits.  To 
Henry  Second  can  also  be  ascribed  the  introduction  of 
trial  by  jury  and  other  legal  reforms,  and  the  wide 
extension  and  regular  establishment  of  the  system  of 
recognition  by  sworn  inquest,  i.  e.,  the  finding  of  facts 
by  a  body  of  impartial  witnesses  who  represented  the 
sentiment  of  the  local  community,  and  who  were  sum- 
moned and  examined  by  an  official,  who  acted  under 
power  of  the  King's  writ.  From  this  institution  our 
present  trial  by  jury  is  lineally  descended. 


CONSTITUTIONAL   HISTORY   OF   ENGLAND.  107 

Much  new  legislation  in  the  various  branches  of 
private  law  was  enacted  during  this  reign  which  will  be 
considered  in  Chapter  VII;  there  is  little,  however,  of 
importance  in  the  line  of  Constitutional  law.  The 
reign  of  Henry  the  Second  may  best  be  described  as 
a  benevolent  despotism.  The  reforms  of  this  period 
were  enacted  by,  and  were  the  work  of  Henry  the 
Second,  rather  than  of  the  Great  Council. 

SECTION  48.    MAGNA  CHARTA. 

Richard  the  First,  commonly  called  Richard  the 
Lion-Hearted,  spent  but  a  few  months  of  his  reign  in 
England,  the  country  being  governed  during  this  tune 
by  various  justices,  under  whom  the  constitutional 
arrangements  organized  by  Henry  the  Second,  worked 
quietly  on,  with  few  impediments  or  changes.  The 
reign  of  John  is  characterized  by  the  attempt  of  that 
monarch  to  disregard  the  rights  both  of  the  barons 
and  the  commons  of  England  with  the  result  of  a  new 
alignment  of  forces  in  England;  the  barons  and 
people  becoming  united  against  the  tyranny  of  the  king. 
This  same  union,  of  barons  and  people  on  the  one  hand 
and  the  royalty  on  the  other  was,  in  the  main,  to 
continue  to  exist  down  to  the  period  of  the  War  of  the 
Roses.  To  this  union  of  the  nobility  and  the  commons 
must  be  assigned  in  a  large  measure  the  retention  of 
the  liberties  of  the  people  in  England  after  they  had 
been  lost  by  the  neighboring  peoples  of  the  continent. 
The  contest  between  the  king  and  his  subjects  finally 
culminated  in  that  great  historical  spectacle  at  Runny- 
mede,  where  John,  finding  himself  arrayed  against 
practically  a  solid  nation,  granted  to  his  people  that 
instrument,  known  as  one  of  the  three  great  chapters 
of  English  liberties,  whose  importance  is  further 
emphasized  by  its  title  of  "The  Great  Charter." 


108  LEGAL  HISTORY. 

The  granting  of  the  Magna  Charta  was  an  event  of 
importance,  not  only  to  the  barons  who  assembled 
at  Runnymede,  and  to  their  allies  among  the  English 
people,  but  to  all  future  generations  of  the  Anglo- 
Saxon  race,  and  indeed  to  the  whole  world.  The 
principles  contained  in  this  charter,  as  extended  and 
supplemented  by  the  provisions  of  the  later  Petition 
of  Rights,  and  Bill  of  Rights  have  ever  since  served  as 
the  fundamental  basis  of  the  rights  and  liberties  of  the 
English  people,  and  more  than  this,  extending  their  in- 
fluence to  regions  of  the  world  of  which  neither  John  nor 
his  opponents  had  ever  heard,  have  largely  served  as  the 
groundwork  upon  which  the  rights  of  the  individual  rests 
in  America  and  Australia .  Many  of  the  provisions  of  the 
United  States  Constitution  and  other  provisions  of  our 
statutory  or  unwritten  law  can  be  traced  back  to  this 
charter.  It  should  be  borne  in  mind,  however,  that 
mingled  with  the  provisions  of  such  great  and  far-reach- 
ing importance,  were  many  others  of  merely  temporary 
interest.  The  sixty-three  articles  of  this  Magna 
Charta  may  be  divided  into  five  clearly  defined  classes 
or  provisions:  1st.  Those  concerned  with  feudal  obli- 
gations. 2nd.  Those  having  relation  to  the  adminis- 
tration of  law  or  justice.  3d.  The  provisions  relating 
to  cities,  boroughs  and  commerce.  4th.  Those  directed 
against  purveyance  and  other  exactions.  5th.  And 
finally  those  fundamental  principles  whose  importance 
have  continued  down  to  the  present  day.  Four 
clauses,  viz. :  the  12th,  14th,  39th,  and  40th  stand  out 
preeminently  from  the  other  fifty-nine.  In  the  first 
two  of  these  are  to  be  seen  the  declaration  of  the  right 
of  the  people  to  be  represented  in  Parliament  and  of 
the  principle  that  taxation  should  not  exist  without 
representation.  In  the  last  two  may  be  seen  the  germs 
of  the  writ  of  habeas  corpus  and  of  the  trial  by  jury. 


CONSTITUTIONAL  HISTORY  OF  ENGLAND.  109 

Clause  12.  "No  scutage  or  aid  shall  be  imposed 
unless  per  commune  concilium  regni,  except  in  the 
three  cases  of  ransoming  the  king's  person,  making  his 
oldest  son  a  knight,  and  once  for  marrying  his  eldest 
daughter,  and  for  these  the  aids  shall  be  reasonable. 
In  like  manner  it  shall  be  concerning  the  aids  of  the 
City  of  London. " 

Clause  14.  "In  order  to  take  the  common  coun- 
cil of  the  nation  in  the  imposition  of  aids  for, 
(other  than  the  three  regular  feudal  aids)  and  of 
scutage,  the  king  shall  cause  to  be  summoned  the 
archbishops,  bishops,  earls  and  greater  barons,  by 
writs  directed  to  each  severally,  all  other  tenants  in 
capite  by  a  general  writ  addressed  to  the  sheriff  of  each 
shire ;  a  certain  day  and  place  shall  be  named  for  their 
meeting,  of  which  forty  days'  notice  shall  be  given; 
in  all  letters  of  summons  the  cause  of  summons  shall 
be  specified,  and  the  consent  of  those  present  on  the 
appointed  day  shall  bind  those  who,  though  summoned, 
shall  not  have  attended." 

Clause  39.  "No  freeman  shall  be  taken  or  impris- 
oned or  disseized  or  outlawed,  or  exiled  or  anyways 
destroyed;  nor  shall  we  go  upon  him,  nor  shall  we 
send  upon  him,  unless  by  the  lawful  judgment  of  his 
peers  or  by  the  law  of  the  land." 

Clause  40.  '  To  none  will  we  sell,  to  none  will  we 
deny  or  delay  right  or  justice."1 

SECTION  49.     SIMON  DE  MONTFORT  AND  THE  ORIGIN 
OF  PARLIAMENT. 

The  thirteenth  century  in  English  history  fore- 
shadowed the  seventeenth.  The  great  movement, 
which  in  the  former  century,  wrested  the  Magna 

1  For  complete  text  of  Magna  Charta  see  Appendix  C. 


110  LEGAL   HISTORY. 

Charta  from  John,  at  Runnymede,  supported  Simon 
de  Montfort  in  his  resistance  to  Henry  Third,  and 
produced  the  evolution  of  the  English  Parliament  out 
of  the  Curia  Regis,  bears  a  very  strong  resemblance  to 
that  movement  which,  four  centuries  later  sent  one  of 
the  Stuart  kings  to  the  block  and  another  into  exile, 
and  secured  for  the  English  people  the  Petition  of  Right, 
the  Habeas  Corpus  Act,  and  the  Bill  of  Rights. 

The  reformers  of  the  thirteenth  century,  however, 
were  men  whose  political  ideas  were  far  ahead  of  their 
times,  with  the  result  that  the  immediate  effect  of  most 
of  their  work  was  only  transient,  and  its  greatest 
importance  lies  in  the  example  which  it  furnished  for 
the  future.  The  attempted  reforms  of  Simon  de 
Montfort,  if  they  could  have  received  the  support  of 
England  at  this  time,  would  have  very  largely  antici- 
pated the  work  of  the  seventeenth  century;  as  it  is  the 
brief  period  of  the  rule  of  Simon  de  Montfort  is  the 
brightest  spot  in  the  history  of  English  liberty  prior 
to  the  days  of  the  Long  Parliament.  De  Montfort  and 
his  followers,  it  is  true,  claimed  to  proclaim  no  new 
political  principles,  nor  to  demand  any  innovation  or 
new  grants  of  liberties  from  the  king.  In  this  they 
resembled  the  English  reformers  of  preceding  and 
succeeding  generations.  From  the  time  when  the 
Anglo-Saxons,  in  the  eleventh  and  twelfth  centuries 
cried  for  the  restoration  of  the  good  old  laws  of  Ead- 
ward  the  Confessor  to  the  time  when  English  liberties 
were  finally  secured  by  the  Bill  of  Rights,  all  proposed 
reforms  in  the  English  Government  have  been  de- 
fended by  their  advocates,  as  being  merely  as  a  return 
to  the  old  liberties  of  their  forefathers. 

What  the  English  people  demanded  of  Henry 

111  was  his  observance  of  the  principles  as  laid  down 


CONSTITUTIONAL   HISTORY   OF   ENGLAND.  Ill 

in  the  Magna  Charta,  an  observance  which  he  often 
promised  but  seldom  fulfilled.  The  liberties  of  England 
seemed  to  perish  with  the  fall  of  De  Montfort  at  the 
battle  of  Eversham,  but  this  struggle  was  not  to  be 
without  its  effect  upon  the  future  of  England  and 
most  prominent  among  the  results  which  can  be  traced 
back  to  this  great  contest  was  the  impetus  which  it  had 
given  to  the  development  of  the  English  Parliament. 

While  in  theory  all  the  powers  of  the  old  Saxon 
Witenagemote  passed  to  the  Curia  Regis  of  the  Norman 
kings,  in  reality  its  legislative  powers  were  soon  reduced 
to  a  mere  shadow.  The  principle  duties  of  the  Curia 
Regis  during  the  reigns  of  the  Norman  kings  were  to 
assist  the  King  in  his  judicial  and  administrative  work. 
Its  legislative  functions,  however,  while  at  this  time 
slight,  represented  the  entire  share  which  either  nobility 
or  commonalty  had  in  the  making  of  English  laws.  In  its 
constitution  the  Curia  Regis  of  the  Norman  kings  was 
a  court  of  the  King's  feudal  vassals,  which  each  tenant 
in  chief  of  the  King  had  the  right  to  attend.  In 
practice  this  attendance  soon  became  limited  to  the 
greater  barons,  the  higher  ecclesiastics,  and  the  officials 
of  the  King.  The  thirteenth  century  saw  the  intro- 
duction of  the  elective  system  in  the  determination  of 
the  membership  of  the  Curia  Regis;  it  was  the  exten- 
sion of  this  system  which  was  to  turn  the  Curia  Regis 
into  the  English  Parliament;  to  play  a  leading  part 
in  the  preservation  of  English  liberties,  and  to  finally 
result  in  the  development  of  that  system  of  representa- 
tive government  which  has  been  the  greatest  political 
contribution  made  to  the  world  by  the  Anglo-Saxon 
race. 

The  elective  method  was  occasionally  used  as 
early  as  the  reign  of  King  John  for  the  purpose  of 


112  LEGAL  HISTORY. 

choosing  representatives  of  the  royal  desmesnes  and 
of  the  lesser  barons.  It  is  not,  however,  until  the  time 
of  De  Montfort  and  the  Parliament  of  1265  that  the 
principle  was  used  for  the  purpose  of  securing  repre- 
sentation to  the  cities  and  boroughs,  the  centers  of  the 
intellectual  and  commercial  life  of  England  and  the 
backbone  of  the  power  of  English  commerce.  With  the 
overthrow  of  De  Montfort  this  representative  system 
seemed  to  have  been  destroyed.  Edward  I,  however, 
had  learned,  and  was  willing  to  learn,  more  from 
De  Montfort  than  military  tactics,  and  we  see  the  Par- 
liament of  1295  created  upon  the  same  basis  as  De 
Montfort 's  famous  parliament  of  thirty  years  before. 

Edward  Fs  Parliament  of  1295,  stands  as  a 
landmark  in  the  constitutional  and  political  history 
of  England.  The  great  work  of  his  reign,  however, 
leaving  out  of  consideration  his  military  campaigns, 
was  along  the  line  of  the  development  of  English 
private  law;  it  is  his  work  which  has  earned  for  him 
the  title  of  the  English  Justinian. 

The  reign  of  Edward  I  is  one  of  definition,  of 
development,  of  the  settlement  of  details;  the  work 
of  his  reign  may  be  said  to  have  been  a  finishing  and 
polishing  of  the  work  which  had  been  rough-hewn 
by  his  predecessors.  We  find  in  it  no  such  great  work 
as  the  reorganizing  of  the  judicial  system  by  Henry 
II;  no  great  charter  of  liberties  like  the  Magna  Charta; 
no  such  brilliant  political  innovation  as  that  contained 
in  the  Parliament  of  Simon  de  Montfort,  but  all  of 
these  needed  the  work  of  an  Edward  I  for  their  com- 
pletion. The  judicial  system  of  Henry  II  was  devel- 
oped into  a  higher  degree  of  efficiency  than  it  ever  at- 
tained in  the  reign  of  the  first  Plantagenet  King.  The 
Magna  Charta  was  reaffirmed,  and  in  the  main  followed. 


CONSTITUTIONAL   HISTORY   OF   ENGLAND.  113 

The  revolutionary  expedient  of  Simon  de  Montfort 
was  made  part  of  the  regular  law  of  the  land. 

SECTION  50.    PARLIAMENT  IN  THE  FOURTEENTH  CEN- 
TURY. 

The  history  of  England  during  the  thirteenth  cen- 
tury, and  again  during  the  fifteenth,  centered  around 
the  nobility  of  England ;  but  in  the  fourteenth  century, 
for  the  first  time,  and  for  the  last  time  prior  to  the 
seventeenth  century,  we  find  a  prominent  place  taken 
by  the  House  of  Commons.  It  was  in  fact,  during  this 
century  that  Parliament  became  definitely  divided 
into  two  houses. 

Even  as  early  as  the  reign  of  Edward  II,  the  Com- 
mons had  asserted  their  power  of  granting  a  subsidy 
"upon  this  condition,"  that  the  King  should  take  advice 
and  grant  redress  upon  certain  articles  in  which  their 
grievances  were  set  forth.  The  reign  of  Edward  II 
from  a  Constitutional  standpoint  is  in  the  main  very 
similar  to  that  of  Henry  III,  and  in  the  resistance 
to  the  King,  the  leading  part  is  taken  by  the  barons 
of  England.  The  attack  upon  Parliament  and  upon 
the  King's  favorites,  is  the  forerunner  of  the  right  of 
Parliament  to  hold  ministers  and  the  King  responsible 
to  them  for  their  conduct.  The  reign  of  Edward  III, 
which  occupied  exactly  one-half  of  the  fourteenth  cen- 
tury was  mainly  a  period  of  foreign  warfare  which  took 
the  King  for  long  psriods  of  time  out  of  England  and 
required  constant  calls  upon  Parliament  for  financial 
support.  It  was  upon  the  House  of  Commons,  as  the 
special  representatives  of  the  commercial  class  of  the 
nation,  that  the  responsibility  of  granting  these 
supplies  chiefly  fell,  and  it  was  through  this  power  of 
the  purse  that  the  House  of  Commons  for  the  first 
time  obtained  a  position  of  real  importance  in  the 

Vol.  1—8. 


114  LEGAL   HISTORY. 

Government  of  England.  Parliamentary  history  of 
the  reign  of  Edward  III  is  very  full,  there  being  no  less 
than  forty-eight  sessions  of  Parliament  held  in  the 
fifty  years  of  his  reign.  Twice  during  his  reign  a  pro- 
vision for  an  annual  session  of  Parliament  was  adopted. 
During  this  long  reign  the  Commons  succeeded  in 
establishing  five  great  rights;  1st.  That  all  taxation 
without  the  consent  of  the  Parliament  should  be 
illegal.  2nd.  That  Parliament  had  the  right  to  exam- 
ine public  accounts  and  appropriate  supplies.  3rd. 
The  necessity  for  the  concurrence  of  both  houses  in 
legislation.  4th.  The  right  of  the  Commons  to  inquire 
into  and  amend  the  abuses  of  the  administration. 
5th.  That  Parliament  had  the  right  to  impeach  the 
King's  ministers  for  misconduct. 

This  last  right,  that  of  impeachment,  was  actually 
exercised  by  the  so-called  "Good  Parliament"  of  1376. 
It  is  strongly  indicative  of  the  growing  strength  of  the 
Parliament  that  during  the  closing  years  of  the  reign 
of  Edward  III,  the  contest  between  John  of  Gaunt 
and  his  enemies  for  the  control  of  affairs  in  England, 
was  fought  out  in  the  halls  of  the  House  of  Commons 
rather  than  upon  the  battlefield. 

The  history  of  the  reign  of  Richard  II  is  an  alter- 
nate triumph  of  despotism  and  constitutional  govern- 
ment, ending  with  the  vindication  of  the  right  of  Parli- 
ament to  depose  an  unworthy  King  and  to  elect  for 
him  a  more  worthy  successor. 

SECTION  51.    THE  WAR  OF  THE  ROSES. 

The  House  of  Lancaster  had  come  to  the  throne 
at  the  close  of  the  fourteenth  century,  with  a  title, 
whose  validity  rested  upon  the  legality  of  the  election 
of  Henry  IV  by  the  House  of  Commons.  Henry  IV, 


CONSTITUTIONAL  HISTORY  OF   ENGLAND.  115 

being  son  of  John  of  Gaunt,  fourth  son  of  Edward  III, 
could  not  be  considered  as  the  heir  to  the  throne,  if 
the  Crown  was  to  descend  strictly  by  those  rules  of 
hereditary  descent  which  the  feudal  law  applied  to  the 
descent  of  real  property.  If  such  rules  were  to  govern, 
the  throne  should  have  passed,  after  the  deposition  and 
death  of  Richard  II,  to  Edward  Mortimer,  the  infant 
son  of  Roger  Mortimer,  Earl  of  March,  son  of  Phillippa, 
who  was  daughter  and  heiress  of  Lionel  of  Clarence, 
third  son  of  Edward  III. 

The  whole  question,  from  a  legal  standpoint,  as  to 
the  respective  rights  of  the  claimants  of  the  Houses  of 
York  and  Lancaster  to  the  English  throne,  therefore, 
turned  upon  this  question  as  to  whether  the  throne  of 
England  was  strictly  hereditary,  or  whether,  upon 
extraordinary  occasion,  the  English  Parliament  had 
the  right  to  vary  such  rules  by  the  election  of  the  most 
worthy  member  of  the  Royal  Family.  It  was  a  ques- 
tion in  which  there  was  much  difficulty  in  reaching  any 
definite  decision,  although  the  historical  arguments 
lay  entirely  on  the  side  of  the  House  of  Lancaster. 
It  was  a  question  too  difficult  to  be  settled  by  law,  a 
question  whose  final  decision  in  the  fifteenth  century 
could  only  be  decided  by  the  sword.  The  War  of  the 
Roses,  indeed,  could  not  finally  settle  the  real  question. 
The  varying  fortunes  of  war  placed  first  one  nation  and 
then  the  other  in  power,  and  even  at  its  close  the  legal 
point  in  controversy  could  hardly  be  said  to  have  been 
determined.  It  remained  an  open  question  in  the  Eng- 
lish Constitution,  down  to  the  time  of  the  accession  of 
the  House  of  Hanover. 

It  was  two  generations  after  the  accession  of 
Henry  IV  before  the  adverse  claims  of  the  descend- 
ants of  Lionel  first  began  to  manifest  themselves.  At 


116  LEGAL  HISTORY. 

the  time  of  the  deposition  of  Richard  II,  the  heir  of 
the  House  of  Mortimer  was  an  infant,  and  among 
his  followers  there  were  none  to  make  headway  against 
the  wary  cunning  of  the  Lancastrian  King.  The 
brilliant  foreign  victories  of  Henry  V  made  him  the 
idol  of  the  English  people,  and  it  seemed  as  if  the  House 
of  Lancaster  was  at  last  firmly  established  on  the 
English  throne,  but  the  aspect  of  affairs  suddenly 
changed  in  the  reign  of  Henry  VI.  Coming  to  the 
throne  when  a  few  months  of  age,  displaying  through- 
out his  life  a  weakness  of  intellect,  which  at  times 
reached  the  point  of  absolute  insanity,  rendered  un- 
popular by  the  acts  of  his  ministers,  by  his  marriage, 
by  the  loss  during  his  reign  of  the  foreign  conquests 
of  his  father,  the  position  of  Henry  VI  after  thirty 
years  of  his  reign  had  been  completed,  was  such  as  to 
invite  attacks  upon  his  power.  The  claim  to  the 
throne  as  the  representative  of  the  claims  of  the  House 
of  Lionel  had  now  passed  to  Richard,  Duke  of  York, 
who,  on  the  male  side,  was  descended  from  the  fifth 
son  of  Edward  III.  At  first  the  Duke  of  York  only 
claimed  to  be  considered  as  the  heir  of  Henry  VI,  but 
upon  the  unexpected  birth  of  a  son  to  the  King,  he 
advanced  the  bolder  claim  to  the  immediate  possession 
of  the  crown,  even  as  against  Henry  himself. 

It  would  be  out  of  place  to  speak  in  detail  of  tne 
kaleidoscopic  changes  of  fortune  of  the  thirty  years 
through  which  the  Wars  of  the  Roses  extended.  The 
defeat  and  death  of  Richard,  the  first  claimant  of  the 
House  of  York  was  succeeded  by  a  series  of  Yorkist 
victories,  which  placed  Edward  IV,  son  of  Richard 
upon  the  English  throne,  and  sent  Henry  VI  to  prison 
and  his  wife  and  son  into  exile.  The  temporary 
change  of  fortune  caused  by  the  desertion  of  Edward's 


CONSTITUTIONAL  HISTORY  OP  ENGLAND.  117 

greatest  supporter,  Warwick,  the  king  maker,  was  soon 
followed  by  greater  successes  for  the  House  of  York 
and  the  murder  of  Henry  VI  and  of  his  son.  Edward 
IV  continued,  thereafter,  throughout  his  life  upon  the 
throne  of  England  without  interruption,  and  it  now 
seemed  as  if  the  House  of  York  had  finally  succeeded 
to  the  throne,  but  as  in  the  case  of  the  House  of  Lan- 
caster, the  appearance  proved  deceptive.  The  un- 
popularity of  Richard  III,  who  was  supposed  to  have 
murdered  his  nephew,  Edward  V,  in  order  to  obtain 
the  throne,  at  length  aroused  new  opposition,  and 
Henry  Richmond  took  the  field  against  him  as  the 
last  representative  of  the  House  of  Lancaster. 

Few  claimants  for  the  English  throne  ever  pos- 
sessed a  more  remote  connection  with  the  royal  family. 
He  was  descended,  on  the  male  side,  from  a  long  line 
of  Welsh  gentlemen  of  no  very  great  prominence,  but 
into  which  family  had  been  infused  by  marriage  the 
claim  to  the  throne,  derived  from  John  of  Gaunt, 
through  his  late  and  rather  illegitimate  marriage. 
It  was,  however,  owing  much  more  to  the  unpopularity 
of  Richard  rather  than  the  strength  upon  which  his 
claim  rested,  which  brought  him  the  support  which 
enabled  him  to  win  his  decisive  victory  at  the  battle 
of  Bosworth,  the  last  battle  of  the  Civil  War. 

The  details  of  the  struggle  of  the  War  of  the  Roses 
are  of  mere  passing  interest  to  the  student  of  English 
Constitutional  History;  nor  was  the  result  of  the  war, 
so  far  as  it  affected  the  fortunes  of  the  two  houses  them- 
selves, of  any  very  vital  importance  to  England.  The  im- 
portant result  of  the  War  of  the  Roses  was  the  destruc- 
tion of  the  greater  part  of  English  nobility.  Death 
on  the  field  of  battle,  on  the  block,  and  in  banish- 
ment, had  so  thinned  the  ranks  of  the  body,  which  in 


118  LEGAL  HISTORY. 

an  early  age  had  more  than  once  proved  too  strong 
for  the  royal  power  itself,  that  it  was  a  mere  shadow 
of  the  House  of  Lords  which  was  left  to  meet  Henry 
VII  after  his  coronation. 

From  the  close  of  the  War  of  the  Roses,  there 
were  two  great  parties  instead  of  three,  struggling  for 
the  controlling  power  in  the  government  of  England. 
The  nobles  had  received  a  blow  from  which  they  never 
recovered,  and  the  contest  for  supremacy  was  left  to 
the  King  and  to  the  House  of  Commons.  The  im- 
mediate effect  was  to  greatly  increase  the  power  of 
the  King.  In  the  contest  against  the  King  the  leading 
place  had  previously  been  taken  by  the  House  of 
Lords.  The  House  of  Commons,  on  such  occasions, 
had  generally  taken  but  a  secondary  part,  merely 
supporting  the  Lords  in  their  resistance.  The  nobility 
had  now  become  no  longer  able  to  make  headway 
against  the  King,  and  the  Commons  were  not  yet  ready 
to  take  the  initiative.  The  result  was  that  the  Kings 
of  the  Houses  of  York  and  Tudor  were  the  most  des- 
potic in  English  history.  When  in  the  seventeenth 
century  the  absolute  power  of  the  King  is  once  more 
resisted,  it  was  no  longer  the  House  of  Lords  but  the 
House  of  Commons  which  was  able  to  claim  for  itself 
a  share  in  the  government  of  England.  The  tempo- 
rary eclipse  of  English  liberty  becomes  thus  merely 
the  prelude  to  its  final  establishment  on  a  more  firm 
and  permanent  basis. 

SECTION  52.    THE  TUDORS. 

The  Tudor  period  is  a  little  more  than  co-extensive 
with  the  sixteenth  century,  a  century  which  has 
been  well  described  as  an  age  remarkable  for  its  mate- 
rial prosperity,  its  intellectual  and  religious  activity,  and 


CONSTITUTIONAL   HISTORY   OF   ENGLAND.  119 

its  political  retrogression.  The  Tudor  period  saw  the 
discovery  of  America,  the  beginning  of  English  explora- 
tion and  foreign  traffic,  the  revival  of  learning,  and  the 
reformation.  The  general,  religious,  and  commercial 
history  of  this  period  is  full  and  interesting.  Its  con- 
stitutional history  is  meager.  It  was  a  period  in  which 
the  King  was  the  State  and  when  his  power  was  gener- 
ally well  nigh  absolute.  There  was,  however,  one  prom- 
inent characteristic  of  the  Tudor  kings,  which  was 
later  to  prove  of  the  greatest  benefit  to  the  kingdom. 
This  characteristic  was  their  great  reverence  for  all  the 
forms  of  the  law.  There  was  no  attempt  on  their  part, 
such  as  was  witnessed  during  the  Bourbon  rule  in 
France,  to  break  down  the  old,  established  instruments 
of  Government.  The  tyranny  of  the  Tudor  kings 
was  nearly  always  in  accordance  with  the  forms  of  the 
law;  Parliament  and  the  courts  of  law  were  retained 
in  their  entirety;  but  Parliament  and  the  judges 
were  compelled  to  carry  out  the  King's  will.  Henry 
VIII,  especially,  seemed  anxious  to  shelter  himself 
from  the  responsibility  of  his  acts  behind  the  breast- 
work of  Parliamentary  sanction.  The  gain  for  the 
present  to  the  people  was  perhaps  slight.  The  advan- 
tage for  the  future  was  immeasurable.  The  old  insti- 
tutions of  England  remained  intact,  with  their  prestige 
perhaps  even  strengthened  by  the  important  work 
which  they  were  compelled  to  do  for  the  King.  The 
tyranny  of  the  sixteenth  century  in  England  was  one 
of  individuals,  not  of  institutions.  A  tyranny  of  an 
individual  may  pass  away  with  the  death  of  the  indi- 
vidual; but  a  tyranny  of  institutions  can  generally 
only  be  removed  by  a  revolution.  Such  proved  to 
be  the  case  in  England.  The  House  of  Commons 
constantly  increased  in  strength  and  influence  during 


120  LEGAL  HISTORY. 

the  Tudor  period.  "There  cannot  be  a  stronger 
proof  of  the  increased  weight  of  the  Commons  during 
these  reigns  than  the  anxiety  of  the  court  to  obtain 
favorable  elections.  Many  ancient  boroughs,  undoubt- 
edly, have  at  no  period  possessed  sufficient  importance 
to  deserve  the  elective  franchise  on  the  score  of  their 
riches  or  population;  and  it  is  most  likely  that  some 
temporary  interest  or  partiality,  which  cannot  now  be 
traced,  first  caused  a  writ  to  be  addressed,  to  them. 
But,  there  is  much  reason  to  conclude  that  the  coun- 
sellors of  Edward  VI,  in  erecting  new  boroughs,  acted 
upon  a  deliberate  plan  of  strengthening  their  influence 
among  the  Commons.  Twenty-two  boroughs  were 
created  or  restored  in  this  short  reign.  *  *  *  There 
is  reason  to  believe  that  the  court,  or  rather  the  imperial 
ambassador,  did  homage  to  the  power  of  the  Commons, 
by  present  of  money,  in  order  to  procure  their  support 
of  the  unpopular  marriage  with  Philip;  and  if  Noeilles, 
the  ambassador  of  Henry  II,  did  not  make  use  of  the 
same  means  to  thwart  the  grants  of  subsidy  and  other 
measures  of  the  administration,  he  was  at  least  very 
active  in  promising  the  support  of  France,  and  animat- 
ing the  patriotism  of  those  unknown  leaders  of  that 
assembly,  who  withstood  the  design  of  a  besotted 
woman  and  her  unprincipled  counsellors  to  transfer 
this  kingdom  under  the  yoke  of  Spain."  2  Except  in 
rare  instances,  however,  the  House  of  Commons,  during 
the  reigns  of  the  first  four  of  the  Tudors,  was  content 
with  the  semblance  of  power  without  the  reality, 
and  obediently  passed  such  laws  as  were  desired  by 
the  court.  During  the  reign  of  Elizabeth  a  much  bolder 
spirit  was  manifest  by  the  Commons  and  but  for  the 
love  borne  by  her  subjects  for  Elizabeth  and  the 

'  Hallam's  Constitutional  History  of  England. 


CONSTITUTIONAL  HISTORY   OF   ENGLAND.  121 

tact  of  the  Queen,  the  great  contest  for  English  liberty, 
fought  out  in  the  Stuart  period,  might  have  begun  in 
the  closing  years  of  the  sixteenth  century. 

SECTION  53.     CONTEST  BETWEEN  THE  STUARTS  AND 
THE  HOUSE  OF  COMMONS. 

Perhaps  no  other  ruler  in  history  ever  came  to  a 
throne  with  so  remarkable  a  hereditary  title  as  did 
James  I  of  England.  Not  only  was  he  descended,  as 
had  also  been  his  predecessors,  the  Tudors,  from 
both  the  Houses  of  York  and  Lancaster,  but  was  also 
the  descendant  in  the  right  line  from  the  West  Saxon 
royal  family  of  Cedric,  Ecgberht,  and  Aelfred.  This 
union  in  James  of  the  right  to  the  throne  from  both 
of  these  ancient  royal  lines  exerted  a  powerful  influence 
upon  his  character  and  actions.  The  central  point  in  his 
political  creed  and  pivot  around  which  all  of  his  actions 
revolved,  was  his  belief  in  the  divine  right  of  kings. 
In  his  mind  the  King  was  something  more  than  a  mere 
mortal  ruler,  he  was  the  divinely  appointed  of  God, 
resistance  to  whom  was  a  hardly  less  heinous  sin  than 
rebellion  against  the  only  superior  whom  a  King  should 
own.  Such  was  the  condition  of  mind  with  which 
the  first  of  the  House  of  Stuart  came  to  the  throne,  and 
such  was  the  belief  of  each  King  of  this  House,  until 
the  last  of  the  line  was  finally  driven  into  exile.  This 
was  not  the  view  of  the  kingly  office  held  by  the  mass 
of  the  seventeenth  century  Englishmen.  The  great 
majority,  it  is  true,  were  imbued  with  a  deep  love  of 
the  King  and  the  kingly  office;  and  the  idea  of  a 
Republic,  even  in  the  times  of  the  most  bitter  conflicts 
with  the  King,  was  espoused  by  only  a  few  radicals 
like  Hazelrig,  and  was  as  repugnant  to  the  mass  of  the 
people  as  the  ideas  of  anarchy  is  today  to  their  descend- 


122  LEGAL   HISTOEY. 

ants.  This  love  and  respect,  however,  was  no  such 
unreasoning  surrender,  as  the  subjects  of  an  oriental 
despot  exhibit  towards  their  masters;  it  was  a  love 
and  reverence  for  the  King  as  one  of  the  ancient  inher- 
ent parts  of  the  English  Government,  and  it  was  such 
a  love  as  they  felt  for  the  House  of  Commons,  or  for 
the  English  Common  Law.  The  King  existed  and  was 
revered  because  he  was  the  King  of  England  and 
because  he  existed  for  the  English  nation.  The  Eng- 
lish nation  was  not  considered  to  exist  for  the  pleasure 
or  profit  of  the  English  King.  In  the  minds  of  the 
English  people  the  true  government  of  their  fore- 
fathers was  one  in  which  both  the  King  and  Parliament 
had  a  share.  It  was  not  the  desire  or  the  intention 
of  the  Englishmen  of  this  century  to  allow  either  of 
these  constituent  elements  of  their  government  to  be 
abolished.  The  extreme  adherents  of  the  Stuarts  were 
in  as  decided  a  minority  as  were  the  zealous  republicans 
or  the  Independents.  The  excesses  on  either  side  were 
always  in  turn  followed  by  a  reaction. 

The  contest  between  James  and  the  Commons  was 
begun  at  the  very  outset  of  his  reign  by  his  attempt 
to  interfere  with  the  election  of  the  members  of  his 
Parliament.  In  vindication  of  their  rights  the  first 
of  James'  Parliaments  set  forth:  "1st.  That  our 
privileges  and  liberties  are  of  right  and  due  inheritance 
no  less  than  our  very  lands  and  goods.  2nd.  That 
they  cannot  be  withheld  from  us,  denied  or  impaired, 
but  with  an  apparent  wrong  to  the  whole  State  of  the 
realm.  3rd.  That  our  making  of  request,  in  the 
entrance  of  Parliament,  to  enjoy  our  privileges  is  an 
act  of  manners  only,  and  doth  not  weaken  our  right, 
no  more  than  our  suing  to  the  King  for  our  land  by 
petition,  which  form,  though  new  and  more  decent 


CONSTITUTIONAL   HISTORY   OF   ENGLAND.  123 

than  the  old  principle,  yet  the  subject's  right  is  no  less 
than  of  old.  4th.  That  our  House  is  a  Court  of  Record 
and  so  ever  esteemed.  5th.  That  there  is  not  the 
highest  standing  court  in  this  land  that  ought  to  enter 
into  competency  either  for  dignity  or  authority,  with 
this  high  court  of  Parliament, which,  with  your  Majesty's 
royal  assent,  gives  laws  to  other  courts,  but  from  other 
courts  receives  neither  laws  nor  orders.  6th.  And 
lastly;  that  the  House  of  Commons  is  the  sole  proper 
judge  of  the  return  of  all  such  writs  and  of  the  election 
of  such  members  as  belong  unto  it,  without  which  the 
freedom  or  election  were  not  entire  and  that  though 
your  Majesty's  Court  of  Chancery  send  out  writs  and 
receive  the  returns  and  preserve  them,  yet  the  same 
is  done  only  for  the  use  of  Parliament  over  which 
neither  the  Chancery,  nor  any  other  court  ever  had, 
or  ought  to  have,  any  manner  of  jurisdiction." 

Throughout  the  reign  of  James  I,  the  King  is  the 
aggressor  and  the  House  of  Commons  only  stands  on 
the  defensive.  The  King  attempts  in  every  way  to 
break  the  spirit  of  the  House  of  Commons  even  at  times 
causing  the  imprisonment  of  their  leaders.  The  Com- 
mons, however,  throughout  his  reign  continue  to  mani- 
fest a  spirit  of  dogged  resistance  which  argued  ill  for 
the  final  success  of  the  Stuart's  theory  of  government. 
The  parliamentary  history  of  the  reign  showed  the  two 
great  weapons  in  the  hands  of  Parliament,  weapons 
that  were  liable  to  become  more  and  more  effective 
as  time  went  on,  to  be  the  power  of  impeachment  and 
the  right  to  make  the  granting  of  supplies  conditional 
upon  the  redress  of  grievances.  But  for  the  resistance 
of  the  House  of  Commons,  James  I,  would  have  met 
with  few  obstacles  to  his  plans.  The  old  union  of  the 
Lords  and  Commons  had  passed  away;  the  nobility 


124  LEGAL  HISTORY. 

were  never  again  to  show  that  spirit  exhibited  at  Run- 
nymede  and  under  the  leadership  of  Simon  de  Mont- 
fort.  The  degenerate  successors  of  the  barons  of  the 
thirteenth  century  were  ready  to  rally  around  the 
despots  of  the  Stuart  dynasty,  content  to  see  the 
ancient  English  liberties  destroyed,  provided  only 
some  slight  crumbs  of  class  privilege  fell  to  their  order. 
A  few  honorable  exceptions,  only  served  to  emphasize 
the  baseness  and  servility  of  the  position  held  in  general 
by  the  so-called  upper  classes  of  England  during  the 
great  contest  of  the  seventeenth  century. 

Turning  from  the  House  of  Lords  to  the  judiciary 
we  see,  if  possible  an  even  darker  picture.  The  judges 
with  few  exceptions,  were  the  abject  tools  of  the  King, 
ready  and  anxious  to  earn  his  smiles  and  favor  by  any 
depths  of  subserviency  and  obedience  to  his  orders. 
The  resistance  of  the  great  chief  justice  Coke  led  to  his 
removal  from  the  bench  and  to  his  continued  persecu- 
tion at  the  hands  of  the  King. 

It  was,  however,  this  very  isolation  of  the  House 
of  Commons  which  secured  for  England  the  retention 
of  her  liberties.  Deserted  by  his  allies  of  an  earlier 
century,  she  was  compelled  to  rely  upon  herself  and 
upon  the  people  of  England  for  the  task.  The  victory, 
when  it  came,  thus  became  one  for  the  whole  people 
and  not  for  the  favored  classes.  The  ulitmate  result 
was  to  make  the  victorious  House  of  Commons  the 
governing  body  of  the  Kingdom.  What  the  House  of 
Commons  did  accomplish  during  this  reign  has  been 
thus  summed  up:  "The  Commons  had  now  been 
engaged  for  more  than  twenty  years  in  a  struggle  to 
restore  and  to  fortify  their  own  and  their  fellow  sub- 
jects' liberties.  They  had  obtained  in  this  period  but 
one  legislative  measure  of  importance,  the  late  declara- 


CONSTITUTIONAL  HISTORY   OF  ENGLAND.         125 

tory  act  against  monopolies.  But  they  had  rescued 
from  disuse  their  ancient  right  of  impeachment.  They 
had  placed  on  record  a  protestation  of  their  claim  to 
debate  all  matters  of  public  concern.  They  had 
remonstrated  against  the  usurped  prerogatives  of  bind- 
ing the  subject  of  proclamation,  and  of  levying  customs 
at  the  out-ports.  They  had  secured  beyond  contro- 
versy their  exclusive  privilege  of  determining  contested 
elections  of  their  members.  Of  these  advantages  some 
were  evidently  incomplete,  and  it  would  require  the 
most  vigorous  exertions  of  future  Parliaments  to  realize 
them."3 

It  was  during  the  reign  of  James  I,  that  the  first 
steps  were  taken  towards  the  creation  of  the  greater 
England.  The  accession  of  James  to  the  English  throne 
united  Scotland  and  England  under  a  common  ruler, 
and  it  was  also  during  the  reign  of  this  King  that  the 
first  successful  English  colonies  were  founded  in  Amer- 
ica. 

The  first  three  years  of  the  reign  of  Charles  I,  are, 
from  a  Constitutional  point  of  view,  a  continuation  of 
the  reign  of  his  father.  The  passage  of  the  Petition  of 
Right,  in  1628,  marked  the  close  of  the  first  period  of 
Stuart  history.  The  Petition  of  Right  consisted  of 
a  statement  of  the  grievance  which  the  people  of  Eng- 
land had  suffered  under  the  different  kings,  and  the 
enactment  that  such  grievances  should  cease  for  the 
future.  The  principal  grievances  thus  petitioned  against 
were: 

1st.     Illegal  exaction  under  the  forms  of  loans. 

2nd.  Arbitrary  imprisonments  especially  of  par- 
liamentary leaders. 

3rd.    The  billeting  of  soldiers  upon  the  people ;  and 

1  Hallam's  Constitutional  History  of  England.     Vol.  I,  p.  373. 


126  LEGAL   HISTORY. 

4th.    The  infliction  of  punishment  by  martial  law. 

It  was  hoped  that  the  Petition  of  Right  would 
end  the  controversy  between  the  King  and  the  Com- 
mons. Such  hope,  however,  rested  upon  a  misunder- 
standing of  the  true  character  of  the  King.  The  belief 
was  firmly  imbedded  in  the  mind  of  King  Charles  that 
a  King  was  so  far  removed  by  Divine  Providence  above 
his  subjects,  that  he  could  not  be  held  bound  by  any 
promises  or  contracts  made  with  them.  Events  soon 
showed  that  Charles  never  intended  to  keep  the  prom- 
ises contained  in  the  Petition  of  Rights  and  such  prom- 
ises were,  in  fact,  not  kept.  The  session  of  Parliament 
in  1629  was  tumultuous  in  the  extreme;  the  King 
refused  to  listen  to  the  remonstrances  of  Parliament 
and  finally  commanded  the  House  of  Commons  to 
adjourn.  Upon  learning  that  the  House  was  preparing 
to  pass  a  series  of  resolutions  condemnatory  of  his 
actions,  the  King  decided  to  send  his  guard  to  the 
House  to  force  immediate  adjournment.  This  action 
occasioned  one  of  the  most  dramatic  scenes  in  the 
Parliamentary  history  of  England,  as  with  the  doors 
locked  against  the  admittance  of  the  King's  guard, 
Sir  John  Elliot  read  the  resolutions  to  the  House, 
while  Valentine  and  Holies  held  the  speaker  in  his 
chair.  These  resolutions,  the  last  remonstrance  which 
Parliament  was  able  to  utter  for  years,  being  passed, 
the  doors  were  then  opened  and  Parliament  was  ad- 
journed by  force.  This  adjournment  was  followed 
by  one  of  the  worst  periods  of  Stuart  tyranny.  For 
eleven  years  the  King  endeavored  to  rule  the  country 
entirely  by  his  own  will,  independently  of  Parliament. 
The  King's  first  act  of  tyranny  was  the  imprisonment 
of  the  rebellious  members  of  this  Parliament,  and  Sir 
John  Elliot  the  leader,  of  the  popular  party  in  the 


CONSTITUTIONAL   HISTORY   OF   ENGLAND.  127 

House  of  Commons,  during  the  session  of  1629,  died 
during  his  imprisonment.  Charles  next  attempted 
to  introduce  many  innovations  in  the  religious  and 
political  institutions  of  England.  Laud,  Archbishop 
of  Canterbury,  was  his  chief  advisor  as  to  religious 
matters,  while  Thomas  Wentworth,  Earl  of  Strafford 
and  a  renegade  leader  of  the  Commons,  was  the  instru- 
ment by  whom  the  King  attempted  to  destroy  the 
political  rights  of  the  English  people. 

The  English  religious  disputes  of  the  seventeenth 
century  are  beyond  the  understanding  of  any  one  but 
a  trained  theologian,  but  by  the  course  of  events  the 
cause  of  the  established  Church  in  England  and  of  the 
Stuart  tyranny  became  inseparably  connected.  Ar- 
rayed against  these  were  the  Protestant  non-conform- 
ists and  the  friends  of  political  liberty.  On  the  political 
side,  the  King's  policy  was  a  simple  one,  it  being 
summed  up  in  the  one  word  motto  of  his  chief  minister- 
thorough.  The  aim  was  nothing  short  of  the  destruc- 
tion of  the  liberties  of  England.  The  English  people 
were,  as  nearly  as  possible,  to  be  reduced  to  the  same 
position  as  that  of  the  subjects  of  an  oriental  despot. 
The  principle  that  the  King  is  the  State,  and  that  the 
subjects  were  created  for  him,  was  to  be  rigidly  carried 
out.  Parliament  was  to  be  done  away  with;  and 
although  the  courts  were  to  continue  to  exist,  they  were 
to  continue  merely  as  agents  of  the  King,  and  subject 
at  all  times  to  his  commands.  There  was  to  be  no 
division  of  powers  among  executive,  legislative,  and 
judicial  departments;  all  departments  were  to  be  one, 
and  that  department  the  King. 

The  chief  difficulty  of  the  King  at  all  times  lay 
in  his  lack  of  money,  and  to  obtain  it  many  illegal 
methods  were  resorted  to.  One  of  these  illegal  methods 


128  LEGAL  HISTORY. 

which  brought  in  the  greatest  returns  was  the  levying 
of  ship  money  in  tune  of  peace,  throughout  all  the 
countries  of  England,  inland  as  well  as  those  bordering 
on  the  sea  shore.  It  was  at  this  time  that  John 
Hampden,  forever  famous  as  the  champion  of  English 
liberties,  refused  to  pay  his  share  of  the  illegal  tax 
and  contended  against  its  lawfulness  in  the  English 
courts.  The  judges,  however,  proved  their  subser- 
viency to  the  King  on  this  question  and  ten  of  the 
twelve  judges  upheld  the  King's  claim.4  It  might 
have  seemed  at  this  tune,  as  though  the  darkness  of 
midnight  had  descended  upon  the  liberties  of  England, 
and  many  of  the  stoutest  hearts  in  the  kingdoms 
showed  then*  despair  at  the  existing  conditions  at  home 
by  emigrating  to  the  wilderness  of  the  new  western 
continent.  Of  a  sudden  a  ray  of  light  appeared  in  the 
North.  Archbishop  Laud,  in  his  zealousness,  not  con- 
tent with  his  alterations  in  the  English  Church,  had 
attempted  at  the  same  time  to  overthrow  the  Calvan- 
istic  system  of  the  Scottish  Church.  The  Scotch,  how- 
ever, lacked  the  patience  of  their  southern  neighbors 
and  scarcely  had  an  attempt  been  made  to  put  the 
hated  innovations  into  force,  when  the  nation  rose 
in  arms.  Terrified  at  this  unexpected  incident,  and  in 
need  of  greater  supplies  of  money  than  could  be  wrested 
from  the  people  even  by  all  his  unlawful  expedients, 
Charles  at  last  summoned  Parliament.  The  Parlia- 
ment elected  was  a  far  more  moderate  one  that  would 
be  expected  to  have  been  chosen  after  eleven  years  of 
misgovernment,  without  a  parliament,  and  in  violation 
of  law.  The  majority  of  the  members  of  Parliament 
were  men  of  conservative  views  but  even  they  insisted 

*  Three  of  the  ten  judges  who  up-  favor  in  this  particular  case  on 

held  the  general  right  of  the  technical  points, 

king    decided    in    Hampden's 


CONSTITUTIONAL  HISTORY  OF  ENGLAND.  129 

upon  certain  reforms  before  they  would  grant  money 
supplies  to  the  King.  The  King  would  hear  of  no 
concession,  and  Parliament  was  adjourned,  without  the 
passage  of  a  single  act.  But  it  was  the  King's 
friends  and  not  his  enemies  who  were  disappointed  at 
this  dissolution.  Historians  of  the  age6  tell  us  how  the 
leaders  of  the  people  went  down  from  Parliament, 
smiling,  knowing  that  a  new  Parliament  would  meet 
in  a  far  different  spirit,  a  spirit  far  more  hostile  to  the 
King  than  had  been  that  of  the  Parliament  just  dis- 
solved. Such  proved  to  be  the  case.  Continued 
trouble  in  the  North  compelled  the  summoning  of  a 
new  Parliament  before  the  year  was  out,  and  the 
election  manifested  that  a  great  change  of  opinion  had 
taken  place  during  the  last  few  months — a  change 
against  the  King.  The  candidates  of  the  King  were 
rejected  on  all  sides,  and  his  bitterest  opponents  elected 
to  Parliament. 

The  members  of  the  famous  Long  Parliament  of 
England  met  in  1640,  with  an  appreciation  of  the  fact 
that  upon  them  rested  the  responsibility  for  the 
preservation  of  English  liberties,  and  with  the  grim 
determination  to  perform  their  duty  regardless  of  what- 
ever the  cost  might  be  to  themselves,  or  to  their 
enemies.  The  work  of  Parliament  began  with  a  move- 
ment for  the  punishment  of  the  guilty  advisors  of  the 
King;  first  came  the  impeachment  of  Stafford,  followed 
by  that  of  Laud  and  others.  The  King,  for  the  moment 
thoroughly  cowed,  signed  the  death  warrants  of  his 
favorites.  The  main  object  of  the  King  in  summoning 
Parliament  had  been  to  obtain  from  them  assistance 
in  his  conflict  with  the  Scots,  but  to  the  members  of 
the  Long  Parliament  the  Scottish  rebellion  appeared 

'  See  Clarendon's  History  of  the  Rebellion  and  Wars  in  England. 
Vol.  1—9. 


130  LEGAL   HISTORY. 

in  a  far  different  light  from  that  in  which  it  was  viewed 
by  the  King.  The  Scotch  were,  like  themselves, 
resisting  the  tyranny  of  the  crown,  and  furthermore, 
it  was  the  Scottish  rebellion  which  had  saved  the 
liberties  of  England  by  making  the  calling  of  a  new 
English  Parliament  necessary.  The  result  was,  that 
instead  of  appropriating  money  to  be  used  in  warlike 
preparations  against  their  northern  neighbors,  Parlia- 
ment referred  to  them  as  their  "brethren  of  Scotland" 
and  voted  a  handsome  sum  of  money  to  the  Scottish 
army  to  reimburse  them  for  their  expenses  and  pay  while 
in  the  field.  The  danger  of  another  long  period  without 
the  re-assembling  of  Parliament  was  done  away  with 
by  an  act  providing  that  Parliament  should  assemble 
at  least  once  in  three  years,  with  provisions  for  its 
assembly  without  the  writs  of  election  being  issued  by 
the  King,  if  such  writs  were  not  properly  issued.  To 
prevent  the  dissolution  of  their  body  before  its  work 
was  accomplished,  it  was  provided  that  it  should  not 
be  dissolved  without  its  own  consent.  At  no  other  time, 
indeed,  in  the  Parliamentary  history  of  England  have 
existing  abuses  been  so  rapidly  abolished  by  Parlia- 
mentary action  as  they  were  during  the  early  months 
of  1641.  The  right  of  the  King  to  collect  ship  money 
was  done  away  with,  and  the  court  of  the  Star  Cham- 
ber, the  High  Commission,  and  the  Council  of  the  North 
were  abolished.  Purveyance  was  restricted,  impress- 
ments declared  illegal,  compulsory  kinghthood  abol- 
ished, and  extensions  of  the  royal  forests  annulled. 

Up  to  this  period  the  House  of  Commons  had 
stood  nearly  as  a  unit  against  the  King,  but  now  a 
division  in  the  parliamentary  ranks  began  to  manifest 
itself.  The  more  conservative,  or  faint  hearted,  of  the 
members  began  to  think  that  enough  had  been  done 


CONSTITUTIONAL   HISTORY   OF   ENGLAND.  131 

to  properly  secure  the  liberties  of  the  English  people, 
and  began  to  fear  that  if  further  encroachments  were 
made  upon  the  power  of  the  King  it  would  result  in  a 
displacement  of  the  equilibrium  of  the  English  mon- 
archy. The  more  radical  element  in  the  Parliament, 
led  by  a  group  of  the  wisest  and  most  far-seeing  states- 
men whose  names  are  contained  in  the  annals  of  his- 
tory, appreciating  the  treacherous  character  of  the 
man  with  whom  they  were  dealing,  feeling  their 
responsibility  as  the  custodians  of  English  liberty,  and 
infused  with  the  progressive  spirit  of  the  day,  were 
determined  to  secure  these  English  liberties  by  laws 
sufficient  to  protect  them,  instead  of  leaving  them  at 
the  mercy  of  the  faith  of  a  man  whose  oath  had  already 
been  shown  to  be  valueless.  The  division  between 
these  two  parties  came  to  an  issue  on  the  attempt  to 
pass  through  Parliament,  what  has  become  known  in 
history  as  'The  Great  Remonstrance,"  which  con- 
sisted of  an  enumeration  of  the  wrongs  which  the 
country  had  sustained  at  the  hand  of  its  King,  and 
an  appeal  to  the  country  to  support  Parliament  in  their 
conflict  with  him.  This  remonstrance  was  finally 
passed  by  a  narrow  margin  of  two  votes.  From  this 
point  on  the  events  leading  up  to  the  Civil  War  fol- 
lowed each  other  in  rapid  succession.  The  attempt 
of  the  King  to  destroy  the  opposition  in  Parliament 
by  the  arrest  of  the  five  leaders  of  the  Parliamentary 
party,  John  Pym,  John  Hampden,  Denzill  Holies, 
Sir  Arthur  Haslerig  and  William  Strode,  was  made 
known  to  these  members  in  time  to  allow  them  to 
escape  from  the  House  before  the  entrance  of  King 
Charles  and  his  soldiers.  Baffled  by  his  attempt  to 
seize  these  leaders,  or  to  create  a  riot  in  the  House  of 
Commons,  which  might  have  given  him  an  excuse  to 


132  LEGAL   HISTORY. 

use  his  guards  for  the  massacre  of  those  members  of 
that  body  who  had  remained  true  to  their  constituents, 
Charles  was  now  under  the  necessity  of  fleeing  from 
London,  taking  up  his  headquarters  at  Oxford  and 
appealing  to  the  fortunes  of  war.  At  first  the  war 
went  favorable  for  the  King,  whose  army  proved 
itself  superior  to  the  armies  of  the  Scotch  or  of  Parlia- 
ment, but  gradually  a  new  element  began  to  develop 
in  the  Parliamentary  army;  it  was  an  element  so 
closely  connected  with  the  religious  differences  of  the 
times  that  it  can  only  be  understood  in  connection 
with  them.  The  great  strength  of  the  Parliamentary 
forces  had,  up  to  this  time,  lain  in  the  low  church 
element  of  the  Church  of  England,  and  in  the  Presby- 
terians. There  was,  however,  growing  up  in  England, 
a  new  religious  belief  which  denounced  the  govern- 
ment by  Councils  as  well  as  that  by  Bishops  or  by 
the  Pope,  and  which  advocated  an  independent  con- 
trol by  each  congregation  over  its  own  affairs.  From 
this  was  derived  their  name  of  Independents.  It 
was  in  this  body  that  the  most  extreme  members  of 
the  Puritan  faith  were  to  be  found;  and  it  was  from 
this  body  that  there  was  organized  the  regiments 
which  probably  constituted  the  finest  body  of  soldiers 
which  have  ever  been  brought  together.  It  was  said 
of  them,  when  afterwards  perfected  under  the  rule  of 
Cromwell,  that  there  have  been  other  bodies  of  soldiers 
in  the  history  of  the  world  which  were  under  as  perfect 
discipline,  and  other  bodies  of  soldiers  inspired  by  as 
fierce  and  sincere  enthusiasm,  but  never  at  any  time, 
has  there  existed  a  body  in  which  such  discipline  and 
enthusiasm  were  combined.  With  the  gradual  develop- 
ment of  this  body  of  soldiers,  the  fortunes  of  war 
began  to  change,  until  finally  these  '  'Ironside  Regi- 


CONSTITUTIONAL   HISTORY   OF   ENGLAND.  133 

ments"  turned  the  tide  of  battle  at  Marston  Moor. 
Charles  now  became  a  fugitive  and  soon  afterwards 
a  prisoner.  A  period  of  trickery,  confusion,  and 
negotiations  ensued.  There  were  at  this  period  four 
distinct  elements,  all  playing  at  cross  purposes,  and  at 
last  three  of  them  resorting  to  deception,  and  attempt- 
ing by  negotiations  with  each  of  the  others  to  obtain 
an  advantage  for  themselves.  The  victory  finally 
falls  to  the  army  of  the  Independents.  The  Long 
Parliament  was  first  reduced  to  a  mere  "rump"  and 
then  dissolved  by  military  force.  The  King,  tried 
for  violation  of  his  coronation  oath,  was  found  guilty 
and  publicly  executed  "a  sentence  too  mighty  for  its 
age;  but  glorious  in  the  light  of  all  future  tune  for  its 
humiliating  lesson  to  the  monarch,  and  its  high  ex- 
ample to  the  subject."6  Two  decisive  defeats  of  the 
Scotch  Presbyterian  army  by  Cromwell  ended  the 
military  operations  for  the  time. 

The  government  of  England  now  passed  com- 
pletely under  the  control  of  the  army  of  the  Inde- 
pendents under  Oliver  Cromwell.  The  contest  entered 
into  between  the  King  and  the  Parliament  had  proved 
fatal  to  both.  The  pages  of  history  fail  to  furnish 
any  other  example  which  can  be  compared  to  the 
position  now  occupied  by  Cromwell  and  his  soldiers. 
The  army  had  overthrown  King  and  Parliament  for 
the  purpose  of  freeing  England,  but  by  the  time  the 
weight  of  the  Stuart  oppression  had  been  removed, 
the  majority  of  the  people  of  the  country  repented 
of  their  success  and  longed  for  the  restoration  of  the 
kingly  rule.  It  was  another  case  where  a  people  who 
had  been  led  out  of  bondage,  now  turned  upon  their 
liberators  and  clamored  for  the  flesh  pots  of  Egypt. 

8  Hawthorne's  "The  Grey  Champion." 


134  LEGAL  HISTORY. 

It  was  the  desire  of  the  Independents  and  of  the  army 
of  the  Commonwealth  to  give  to  the  people  of  Eng- 
land the  right  of  self  government;  but  it  was  evident 
to  all  that  the  first  use  which  the  people  would  make 
of  such  a  right  would  be  to  fasten  upon  themselves 
once  more  the  shackles  of  Stuart  tyranny.  The  result 
was,  that  the  only  government  which  Cromwell  could 
maintain  was  a  military  despotism.  There  was,  in- 
deed, one  course  open  to  Cromwell  which  would  have 
been  heralded  with  satisfaction  by  the  mass  of  the 
English  people.  The  attachment  and  loyalty  of  the 
English  people  was  at  all  times  rather  to  the  name  of 
king  than  to  any  particular  royal  house;  as  had  been 
shown  in  the  fifteenth  century  by  the  readiness  with 
which  the  nation  accepted  in  turn  with  equal  loyalty, 
the  kings  of  the  rival  Houses  of  York  and  Lancaster. 
If  Cromwell  himself  had  assumed  the  kingly  office, 
that  national  tendency  of  the  British  people  to  follow 
the  King  de  facto,  coupled  with  the  pride  which  every 
Englishman  felt  in  the  great  foreign  successes  of  this 
greatest  of  English  Generals  would  have  changed  the 
royal  dynasty  of  England  as  effectually  as  it  had  been 
changed  by  the  battle  of  Senlac,  and  the  restoration 
of  the  Stuarts  would  in  all  probability  have  been  as 
difficult  in  the  seventeenth  century  as  it  afterwards 
became  in  the  eighteenth.  One  insurmountable  diffi- 
culty, however,  stood  in  the  way  of  such  a  step,  it 
would  have  met  with  the  opposition  of  the  one  body 
of  men  whom  Cromwell  could  not  antagonise,  the  army 
of  the  Independents.  It  is  not  important  to  consider 
the  various  plans  of  government  during  the  years  of 
the  Commonwealth;  these  governments  were  entirely 
outside  the  stream  of  the  development  of  the  English 
Constitution;  they  were  not  the  product  of  previous 
English  history,  they  played  no  part  in  the  develop- 


CONSTITUTIONAL  HISTORY   OF  ENGLAND.  135 

ment  of  the  future.  Their  greatest  value  is  the  proof 
which  they  give  of  the  absolute  inability  of  the  Saxon 
race  to  adapt  itself  to  any  sudden  or  radical  change 
in  government  and  to  remind  us,  once  more  of  that 
gradual  but  continued  evolution  which,  commencing 
in  the  German  forests  before  the  dawn  of  history, 
culminates  in  the  Constitution  of  the  United  States. 
The  stability  of  Cromwell's  government  rested 
entirely  upon  the  statesmanship  and  iron  will  of 
Cromwell  himself;  the  task  of  supporting  it  was  too 
great  for  his  weak  son  and  successor.  The  inevitable 
result  came  in  the  restoration  of  the  House  of  Stuart, 
in  the  person  of  Charles  II,  in  1660.  The  reign  of  this 
monarch  was  the  period  of  Stuart  history  during 
which  the  liberties  of  the  people  of  England  were  in 
the  most  serious  danger.  Charles  lacked  one  char- 
acteristic which  we  find  prominently  in  the  characters 
of  his  grandfather,  father  and  younger  brother,  and 
which  during  the  reigns  of  all  the  kings  furnished  the 
greatest  safeguard  to  the  English  people.  What  the 
other  rulers  of  the  Stuart  race  sought  was  less  the  real 
exercise  of  power  than  the  humble  acknowledgment 
of  such  power  by  their  subjects;  the  discovery  of 
opposition  on  the  part  of  the  people  to  any  of  their 
measures  only  made  them  the  more  anxious  to  secure 
their  adoption;  they  sought  to  openly  trample  upon 
the  liberties  of  England,  rather  than  to  secretly  under- 
mine them.  It  is  one  of  the  most  striking  peculiarities 
of  the  Anglo-Saxon  race  that  there  is  never  much 
danger  to  their  liberties  in  cases  of  open  attack;  the 
real  danger  to  such  liberties  always  lies  in  their  over- 
confidence  and  lack  of  watchfulness,  which  has  at 
times  allowed  their  liberties  to  be  stolen  away  while 
they  slept;  and  it  is  a  further  characteristic  of  this 
race  that  the  most  advantageous  time  for  a  midnight 


136  LEGAL  HISTOEY. 

attack  upon  them  is  just  after  they  have  repulsed  the 
enemy  in  the  open  field.  To  Charles  II,  alone,  of  the 
Stuart  Kings  was  this  state  of  affairs  apparent.  He 
learned  the  wisdom  of  yielding,  with  the  graciousness 
of  which  he  was  such  a  master  hand,  when  his  measures 
aroused  open  opposition,  and  then  quietly  proceeding 
to  reach  the  same  end  by  another  route. 

No  general  statement  can  be  made  as  to  the  char- 
acter of  this  reign  on  account  of  its  division  into 
several  sharply  defined  periods;  there  is  a  period  of 
the  rule  of  the  government  of  Clarendon,  followed  by 
that  of  the  Cabal;  of  Danby;  of  the  Whig  ascendancy, 
the  last  followed  by  its  violent  reaction.  There  were 
periods  when  England  seemed  about  to  adopt  a  foreign 
policy  similar  to  that  of  Cromwell,  as  at  the  time  of 
the  formation  of  the  'Triple  Alliance";  at  other 
times  England  sank  almost  to  the  position  of  a  de- 
pendency of  France.  This  reign  also  saw  the  fore- 
shadowing of  the  ministry  system  and  the  passage  of 
such  acts  as  that  abolishing  feudal  incidents,  the  sta- 
tute of  frauds,  and  habeas  corpus  act.  The  vital 
constitutional  question  involved  in  this  reign  was  that 
relative  to  the  succession  of  James,  the  brother  of 
Charles,  and  heir  apparent  to  the  throne.  As  James 
was  an  avowed  Roman  Catholic,  the  question  pre- 
sented itself  as  to  whether  James  could  be  allowed  to 
rule  over  a  Protestant  nation.  The  Whig  party  en- 
deavored to  pass  through  Parliament  an  act  excluding 
him  from  the  throne,  and  it  seemed  as  if  the  King  was 
about  to  be  forced  to  yield  to  the  demands  when  the 
Rye  House  Plot  produced  a  violent  reaction.  The 
prosecution  and  persecution  of  the  Whigs  which  fol- 
lowed, broke  up  the  power  of  that  party  and  left  the 
King  with  a  freer  hand  than  he  had  previously  had 
during  his  reign.  It  is  doubtful  if  there  is  any  other 


CONSTITUTIONAL  HISTORY  OF  ENGLAND.  137 

period  in  English  history  when  the  liberties  of  England 
were  in  such  real  danger  as  they  were  just  at  this  time; 
their  salvation  came  in  the  sudden  and  unexpected 
death  of  Charles.  It  was  England's  good  fortune  at 
this  crisis  to  have  the  Crown  pass  to  one  of  the  worst 
rulers  that  has  ever  sat  upon  a  throne.  The  four 
years'  rule  of  James  is  the  history  of  a  constant  viola- 
tion of  everything  that  the  English  people  most  dearly 
loved,  and  a  constant  effort  to  overthrow  the  laws  and 
liberties  of  England,  and  to  establish  such  a  despotism 
in  England  as  Richelieu  and  Louis  XIV  had  succeeded 
in  creating  in  France. 

These  four  years  of  tyranny  had  the  effect  of  driv- 
ing the  English  people,  never  moved  except  by  the 
practical  consideration  of  the  hour,  to  a  realization 
of  the  necessity  of  securing  their  liberties  by  putting 
some  effectual  curb  on  the  power  of  their  kings.  James 
II  gave  to  England  four  years  of  unendurable  tyranny, 
and  by  so  doing  secured  to  her,  her  liberties  for  future 
ages.  Never  had  there  existed  such  unanimity  among 
the  English  people  as  that  which  finally  drove  James 
II  into  exile ;  discordant  factions  which  for  three  gener- 
ations had  fought  each  other  with  tongue,  with  pen 
and  with  sword,  united  in  the  general  cry  which  went 
out  to  William  of  Orange  to  come  to  their  relief.  The 
seven  English  leaders,  Devonshire,  Danby,  Lumby, 
Compton,  Shrewsbury,  Sidney,  and  Russell,  who  signed 
the  famous  original  invitation,  were  representatives 
of  all  the  great  factions  in  English  politics.  Their 
invitation  was  the  invitation  of  the  English  nation. 

SECTION  54.    THE  BILL  OF  RIGHTS. 

The  Bill  of  Rights  was  the  greatest  triumph  of  the 
seventeenth  century.  The  seventeenth  century  on  the 
continent  of  Europe  was  one  marked  by  the  growth  of 


LEGAL   HISTORY. 

despotism  and  the  destruction  of  free  institutions. 
Influences  were  at  work  in  England  tending  to  bring 
about  these  same  results.  For  nearly  the  whole  of 
the  century  the  issue  had  hung  in  doubt,  and  the  tide 
of  battle,  for  three  generations  had  swayed  now  towards 
absolutism  and  now  towards  popular  government. 
In  the  closing  years  of  the  century  the  contest  was* 
ended  by  a  decisive  victory  for  free  government.  The 
instrument  which  saved  England  from  following  in 
the  footsteps  of  France  and  Austria,  and  from  the 
necessity  of  undergoing  those  terrible  scenes,  which  a 
century  later  burst  upon  her  neighbor  across  the 
channel,  was  the  Bill  of  Rights.  This  instrument  was 
adopted  upon  the  accession  of  William  and  Mary  to 
the  throne  of  England  and  contained  the  statement 
of  those  rights  which  the  long  contest  of  the  century 
had  won  for  England.  It  was  the  vindication  of  those 
rights  which  the  House  of  Stuart  had  denied  and 
attempted  to  overthrow,  and  was  a  denial  to  the  crown 
of  those  powers  which  they  had  attempted  to  usurp. 
Among  other  things  the  Bill  of  Rights  declared  that 
the  pretended  power  of  suspending  or  dispensing  with 
laws  or  the  execution  of  laws,  by  royal  authority, 
without  the  consent  of  the  people,  was  illegal;  that 
levying  money  by  the  crown  without  a  grant  of  Parlia- 
ment or  under  terms  of  said  grant  was  illegal;  that  the 
right  of  any  subject  to  petition  the  King  could  not  be 
denied  to  -him ;  that  the  raising  and  keeping  a  standing 
army  within  the  kingdom  in  time  of  peace,  except 
with  the  consent  of  Parliament,  was  against  the  law; 
that  the  Protestant  subjects  of  the  kingdom  should 
have  the  right  to  keep  and  bear  arms;  that  the  election 
of  members  of  Parliament  ought  to  be  free  from  inter- 
ference by  the  King;  that  the  freedom  of  speech, 


CONSTITUTIONAL  HISTORY  OF  ENGLAND.  139 

debates,  or  proceedings  in  Parliament  ought  not  to  be 
impeached  or  questioned  in  any  court  or  place  outside 
of  Parliament;  that  excessive  bail  ought  not  to  be 
required  nor  excessive  fines  imposed,  nor  cruel  and 
unusual  punishments  inflicted;  that  juries  ought  to 
be  duly  and  fairly  impaneled;  that  all  grants  and 
promises  of  fines  or  forfeitures  of  particular  persons 
before  conviction  were  illegal  and  void;  that  for  the 
redress  of  all  grievances  and  for  the  amending,  strength- 
ening, and  preserving  of  the  laws,  Parliament  should  be 
held  frequently.  Many  of  these  provisions  are  today 
to  be  found  in  the  Bills  of  Rights  of  the  United  States 
Constitution  and  of  the  Constitutions  of  the  individual 
states  of  the  Union. 

The  passage  of  the  Bill  of  Rights  is  perhaps  the 
greatest  of  all  landmarks  in  the  constitutional  history 
of  England.  The  change  between  the  government  of 
England  of  the  year  1688  and  that  of  the  year  1689 
was  hardly  less  than  the  difference  which  today  exists 
between  the  government  of  England  and  that  of 
Russia.  The  importance  of  the  instrument  can  only 
be  understood  by  a  study  of  the  historical  conditions 
of  the  times,  as  well  as  of  the  text  of  the  instrument. 
The  Bill  of  Rights  ranks  with  the  Magna  Charta  and 
the  Petition  of  Rights  as  the  three  great  charters  of 
English  liberty.  There  is,  however,  one  great  dis- 
tinction between  the  history  of  the  Bill  of  Rights,  and 
that  of  its  two  predecessors;  the  Magna  Charta  and  the 
Petition  of  Right,  both  contained  promises  of  great 
value  to  the  country,  but  the  promises  therein  contained 
were  almost  always  resisted,  and  at  times  absolutely 
disregarded.  The  promises  of  the  Declaration  of  the 
Bill  of  Rights  were  kept,  and  with  the  passage  of  this 
bill,  the  danger  of  the  destruction  of  English  liberty 


140  LEGAL   HISTORY. 

passed  away.  The  long  contest  between  the  King  and 
the  nobility  and  the  people  for  the  commanding  influ- 
ence in  the  government  of  England  was  now  over; 
by  the  Bill  of  Rights  the  governing  power  was  finally 
secured  to  the  English  people. 

SECTION  55.    THE  MINISTRY  SYSTEM. 

The  Bill  of  Rights  was  the  last  event  in  English 
history  which  was  to  have  a  direct  influence  upon  the 
form  of  government  to  be  adopted  in  the  United 
States.  The  important  later  changes  in  the  workings 
of  the  English  government  did  not  extend  to  the 
government  of  the  American  colonies  and  were  very 
imperfectly  understood  by  the  Americans  at  the  time 
of  the  Declaration  of  Independence,  or  of  the  Consti- 
tution. The  constitutional  history  of  England,  from 
the  adoption  of  the  Bill  of  Rights  to  the  accession  of 
George  III,  can  therefore  be  passed  over  with  a  brief 
mention. 

The  most  important  innovation  of  this  period  was 
the  development  of  the  English  Ministry  system. 
The  union  of  all  the  different  political  and  religious 
factors  of  the  English  people,  which  had  called  William 
and  Mary  to  the  throne  of  England,  was  the  mere 
laying  aside,  instead  of  the  burying  of  differences,  and 
these  differences  broke  out  again  as  soon  as  the  common 
danger  had  been  removed.  Willaim  of  Orange,  a 
Hollander  by  birth,  and  concerned  rather  with  the 
larger  politics  of  Europe  than  with  the  insular  politics  of 
England,  could  neither  fully  understand  nor  sympathize 
with  the  aims  and  prejudices  of  the  individual  English- 
man. He  desired  to  consider  all  the  previous  difficul- 
ties as  settled  and  determined  by  the  Bill  of  Rights, 
and  to  unite  England  in  the  support  of  those  objects 
which  he  considered  necessary  for  the  preservation  of 


CONSTITUTIONAL  HISTORY  OF  ENGLAND.  141 

the  liberties  of  all  Europe.  For  this  reason  he  chose 
his  ministers  at  the  start  from  the  leaders  of  all  political 
shades.  The  condition  of  English  politics  was  such,  how- 
ever, as  to  render  the  permanency  of  such  an  arrange- 
ment impossible.  Although  the  King,  after  the  passage 
of  the  Bill  of  Rights,  still  retained,  for  a  tune,  some 
actual  share  of  the  government  of  England,  still  the 
change  was  rapidly  developing  by  which  the  power 
of  the  executive  department  passed  from  the  King 
to  that  of  the  Ministry,  consisting  of  the  highest  offices 
of  the  various  administrative  departments.  This  Eng- 
lish ministry  system  stands  today  as  one  of  the  so-called 
conventions  of  the  English  Constitution. 

One  effect  of  the  introduction  of  the  Ministry  was 
to  aid  in  that  course  of  events  which  were  taking  away 
from  the  King  the  ruling  power  and  giving  it  to  the 
House  of  Commons,  to  whom  the  ministry  were  respon- 
sible ;  it  tended  to  reverse  the  positions  of  the  executive 
and  legislative  departments  and  to  make  the  latter 
entirely  dependent  upon  the  former.  The  Americans 
at  the  time  of  the  revolution  did  not  clearly  understand 
the  exact  relation  of  the  various  departments  of  the 
English  government  to  each  other,  nor  appreciate  this 
supremacy  which  the  legislative  department  had  ac- 
quired over  the  executive.  The  English  Ministry  sys- 
tem was  not  even  considered  during  the  sessions  of  the 
Federal  Constitutional  Convention. 

SECTION  56.    THE  HOUSE  OF  HANOVER. 

The  right  of  the  English  Parliament  to  make 
provision  as  to  the  rules  of  succession  to  the  crown 
which  had  been  sustained  by  the  accession  of  Henry 
IV,  Henry  VII,  and  William  and  Mary  to  the  crown, 
was  finally  vindicated  by  the  act  of  settlement  passed 
at  the  very  beginning  of  the  eighteenth  century.  By 


142  LEGAL   HISTORY. 

this  act  Parliament  settled  the  line  of  descent  of  the 
English  crown,  cutting  out  two  branches  of  the  royal 
family,  which  were,  by  the  rules  of  strict  hereditary 
descent,  entitled  to  succeed  to  the  throne  in  advance 
of  the  line  upon  which  Parliament  settled  the  suc- 
cession. As  in  the  time  of  the  settlement  of  the  crown, 
by  Parliament,  upon  the  House  of  Lancaster,  this 
settlement  occasioned  a  civil  war.  The  civil  war  of  the 
eighteenth  century,  however,  was  of  but  slight  impor- 
tance. George  I  the  Elector  of  Hanover,  succeeded  to 
the  throne  in  1714,  upon  the  death  of  Queen  Anne,  and 
the  uprising  in  favor  of  the  Stuarts  in  1715  and  1745 
were  both  repulsed  with  little  difficulty. 

The  constitutional  history  of  England  during  the 
eighteenth  century  unlike  that  during  the  seventeenth 
is,  as  has  been  said,  of  little  importance  in  the  study  of 
the  Constitutional  History  of  the  United  States,  the 
reason  being  found  in  the  fact  that  the  events  of  the 
former  century  have  an  important  bearing  upon  the 
future  development  of  the  United  States  Government, 
while  those  of  the  latter  do  not.  There  is  very  little  of 
interest  in  the  early  years  of  the  rule  of  the  House  of 
Hanover.  The  first  two  Kings  of  this  House,  strangers 
in  birth  and  inclination  to  the  country  over  which  they 
were  called  to  rule,  never  understood  the  English 
Government  nor  cared  to  interfere  in  its  management; 
they  were  content  to  leave  the  conduct  of  affairs  in  the 
hands  of  the  ministry,  thus  helping  to  expedite  the 
movement  already  spoken  of  which  was  transferring 
the  power  of  the  crown  to  the  ministry.  This  develop- 
ment of  the  ministry  was  the  one  great  constitutional 
event  of  the  century  in  England,  and  this  development 
had  no  great  influence  upon  America.  The  great 
ministers  during  the  reign  of  the  first  two  Hanovers 
were  Robert  Walpole  and  William  Pitt;  the  rule  of  the 


CONSTITUTIONAL   HISTORY   OF   ENGLAND.  143 

former  was  a  period  of  quiet  and  internal  development ; 
that  of  the  latter  of  brilliant  foreign  conquest. 

The  rule  of  William  Pitt  commenced  a  new  era 
for  England ;  it  was  under  him  that  the  British  Empire 
begins  to  assume  shape.  The  result  of  the  seven  years' 
war  was  the  transfer  of  the  French  Colonial  Empire  to 
England,  leaving  that  country  supreme  in  India  and 
America.  An  indirect  result  of  this  was  destined  to  be 
the  American  War  of  Independence.  The  destruction 
of  the  French  power  in  America  gave  security  to  the 
American  colonies  wrhile  their  services  in  the  war 
against  France  had  given  them  military  experience  and 
confidence.  Furthermore,  it  was  the  debt  which  the 
expenses  of  the  war  had  laid  upon  England,  that  later 
brought  about  the  taxation  of  the  colonies  that  caused 
the  rupture  between  the  colonies  and  the  mother 
country. 

The  final  element  necessary  to  bring  about  the 
revolutionary  war  was  found  in  the  character  of  the 
third  King  of  the  House  of  Hanover,  who  came  to  the 
throne  near  the  close  of  the  seven  years'  war.  The 
attitude  of  the  new  King  towards  England  was  far 
different  from  that  of  his  two  predecessors.  He  was 
the  last  of  the  two  English  kings  who  demanded  to 
be  King  in  reality  as  well  as  in  name,  the  ruling  power 
of  the  government  instead  of  a  figurehead.  His  atti- 
tude towards  the  colonies  was  merely  a  phase  of  his 
whole  policy  towards  his  subjects.  This  policy  was 
destroyed  when  Cornwallis  surrendered  at  Yorktown. 
The  War  of  the  American  Revolution  brought  other 
results  to  England  than  that  of  the  mere  loss  of  her 
colonies.  It  was  the  culmination  of  those  events 
which  transferred  the  ruling  power  in  England  from 
the  King  to  the  House  of  Commons. 


CHAPTER  VII. 
THE  ENGLISH  COMMON  LAW. 

SECTION  57.    THE  NORMAN  CONQUEST. 

The  Norman  Conquest  was  destined  entirely  to 
change  the  course  of  development  of  English  law,  and 
yet,  with  the  exception  of  the  introduction  of  the 
Norman  feudal  system,  very  few  innovations  were  made 
by  William  the  Conqueror,  himself ,  in  the  English  law. 
The  changes  which  took  place  were  of  gradual  growth, 
and  the  English  law  of  the  twelfth  century  is  a  very 
different  thing  from  either  the  Saxon  law  or  the  Nor- 
man law  of  the  eleventh.  The  legislation  of  William 
I.  himself  has  thus  been  summed  up:  "He  forbade 
the  bishops  and  archdeacons  to  hold  in  the  hundred 
courts  pleas  touching  ecclesiastical  discipline;  such 
pleas  were  for  the  future  to  be  judged  according  to  the 
canons  and  not  according  to  the  law  of  the  hundred; 
the  lay  power  was  to  aid  the  justice  of  the  church, 
but  it  was  to  be  well  understood  that  no  canon  was 
to  be  enacted,  and  none  of  his  barons  or  ministers 
were  to  be  excommunicated  without  his  leave.  He 
declared  that  his  peace  comprehended  all  men,  both 
English  and  Normans.  He  required  from  every  free- 
man an  oath  of  fealty.  He  established  a  special  pro- 
tection for  the  lives  of  the  Frenchmen;  if  the  slayer 
of  a  Frenchman  was  not  produced  a  heavy  fine  fell 
on  the  hundred  in  which  he  was  slain.  He  declared 
that  this  special  protection  did  not  extend  to  those 
Frenchmen  who  had  settled  in  England  during  the 

Vol.  I.— 10.  145 


146  LEGAL  HISTORY. 

Confessor's  reign.  He  defined  the  procedural  rules 
which  were  to  prevail  if  a  Frenchman  accused  an 
Englishman,  or  an  Englishman  a  Frenchman.  He 
decreed  that  every  freeman  should  have  pledges 
bound  to  produce  him  in  court.  He  forbade  that 
cattle  should  be  sold  except  in  the  towns  and  before 
three  witnesses.  He  forbade  that  any  man  should  be 
sold  out  of  the  country.  He  substituted  mutilation 
for  capital  punishment."  * 

SECTION  5&.    THE  FEUDAL  SYSTEM. 

The  most  important  institution  in  Europe  during 
the  Middle  Ages  was  feudalism.  It  is  around  this 
system  that,  for  about  eight  centuries,  the  history  of 
Western  Europe  is  centered.  It  is  this  wide  extent 
of  feudalism,  measured  both  by  tune  and  by  space, 
that  makes  any  satisfactory  definition  of  this  insti- 
tution so  difficult.  Feudalism  is  never  stationary. 
There  is  the  period  of  its  development,  the  period  of 
its  greatest  power,  and  the  period  of  its  decline.  The 
feudalism  of  one  country  during  one  century  will  be 
found  very  different  from  that  of  another  country  in 
another  century. 

Feudalism  also  presents  a  varying  picture  in 
accordance  with  what  phase  of  the  subject  we  are  con- 
sidering. Feudalism  is  at  the  same  time  a  system  of 
land  ownership;  a  personal  relation  between  lord  and 
vassal;  and  the  basis  for  the  military  organization  of 
the  tunes;  by  it  are  determined  the  political,  social, 
and  economic  status  of  every  inhabitant  of  the  country. 

The  oldest  aspect  of  feudalism  is  the  military  one. 
The  most  uniform  and  important  characteristic  of 
feudalism  is  the  existence  of  the  relation  of  lord  and 

1  Pollock  and  Maitland's  History  of  English  Law.  Volume  I.,  pp.  66  and  67, 
1st  Edition. 


THE   ENGLISH   COMMON   LAW.  147 

vassal,  which  made  possible  the  organization  of  effec- 
tive military  forces.  Effective  military  forces  in  the 
middle  ages  meant  conquest,  and  conquest  meant 
land  to  be  divided  among  the  victors.  It  only  be- 
comes necessary  to  make  the  holding  of  such  land  by 
the  vassals  dependent  upon  continued  military  service 
to  the  lord,  to  have  a  feudal  system  of  land  tenure. 
For  the  great  body  of  the  men  of  the  middle  ages,  the 
only  occupations  possible  were  those  of  agriculture 
or  war;  with  both  of  these  thoroughly  feudalized, 
every  man's  position  in  the  social  and- economic  struc- 
ture must  be  determined  by  the  workings  of  this 
system. 

One  great  result  of  feudalism  was  the  substitution 
of  the  idea  of  territorial  Jaws  for  the  systems  of  racial 
laws  previously  prevailing  in  Europe. 

SECTION  59.    FEUDAL  TENURES. 

It  is  only  as  a  system  of  land-ownership  that  feudal- 
ism needs  to  be  considered  in  this  chapter.  The  under- 
lying theory  of  feudalism  in  this  respect  was  that  all 
land  was  owned  by  the  King.  The  King  grants  land 
to  his  tenants-in-chief  in  return  for  military  service, 
they  in  turn  sub-infeudate  others,  and  the  progress 
goes  on  until  at  last  the  actual  tillers  of  the  soil  are 
reached.  The  number  of  these  sub-infeudations  was 
theoretically  unlimited;  for  illustration,  in  Edward 
the  First's  days,  Roger  of  St.  German  held  land  at 
Paxton  in  Huntingdonshire  of  Robert  of  Bedford,  who 
held  of  Richard  of  Ilchester,  who  held  of  Alan  of 
Chartres,  who  held  of  Devorguil  Balliol,  who  held  of 
the  King  of  Scotland,  who  held  of  the  King  of  Eng- 
land.2 

•  Rat.  Hund.  II,  673. 


148  LEGAL   HISTOKY. 

The  holding  of  a  vassal  from  a  lord,  under  what- 
ever conditions,  was  called  a  tenure.  It  is  at  once 
manifest  that  the  way  in  which  a  great  baron  held  of  the 
King  was  a  very  different  one,  in  every  respect,  from 
that  in  which  a  villein  (or  serf)  held  from  his  immediate 
lord.  As  a  matter  of  fact,  there  existed  in  England  a 
large  variety  of  tenures,  which  will  be  briefly  considered 
separately.  All  tenures  involve  the  duties  of  homage 
and  fealty  by  the  vassal  and  of  protection  by  the  lord. 

The  most  honorable  of  lay  tenures  was  that  by 
knight's  service.  It  was  by  this  tenure  that  most  of 
the  tenants-in-chief  held  of  the  King,  and  that  the 
principal  sub-vassals  held  of  the  tenants-in-chief. 
Under  this  tenure  the  land  was  granted  in  return  for  the 
services  of  a  certain  number  of  fully  armed  knights 
each  year  for  a  period  of  about  forty  days.  For  about 
a  century  after  the  Norman  Conquest  practice  and 
theory  mainly  agreed,  and  the  military  tenures  furnished 
the  King  his  army;  during  the  next  succeeding  century 
the  holders  by  these  tenures  did  the  same  thing  in- 
directly by  paying  scrutage  instead  of  furnishing  the 
soldiers,  and  after  this  period  they  failed  to  furnish  an 
army,  either  directly  or  indirectly.  By  this  time  all  that 
remained  of  this  tenure  were  its  so-called  incidents, 
which  will  be  considered  in  the  next  section. 

Tenure  by  serjeanty  was  one  of  the  hardest  tenures 
to  explain  on  account  of  the  great  diversity  of  services 
upon  which  this  tenure  might  be  made  to  depend. 
Serjeanty  is  first  divided  into  grand  and  petty  ser- 
jeanty. Grand  serjeanty  is  a  tenure  of  dignity  and 
includes  such  services  "as  to  carry  the  banner  of  the 
King,  or  his  lance,  or  to  lead  his  army,  or  to  be  his 
marshal,  or  to  carry  his  sword  before  him  at  his  coro- 
nation, or  to  be  his  server  at  his  coronation,  or  his  carver, 


THE    ENGLISH    COMMON    LAW.  149 

or  his  butler,  or  to  be  one  of  the  chamberlains  of  the 
receipt  of  his  Exchequer."3  Petty  serjeanty  covered 
a  variety  of  menial  services,  not  agricultural,  and  we 
also  find  petty  serjeanties  connected  with  warfare, 
such  as  the  duty  to  furnish  a  foot-soldier  or  an  archer 
for  the  army.  The  forests  and  hunting  were  the 
occasions  of  many  tenures  by  serjeanty,  and  finally 
land  might  be  held  by  this  tenure  on  the  service  of 
furnishing  certain  military  supplies. 

"Any  tenure  that  on  the  one  hand  is  free,  and  on 
the  other  hand  is  not  spiritual,  nor  military,  nor 
'servientiaP  is  called  tenure  in  free  socage.  Obviously, 
therefore,  this  term  'socage'  will  have  to  cover  a  large 
field;  it  will  have  to  include  various  relationships  be- 
tween men,  which,  if  we  regard  their  social  or  economic, 
or  even  their  purely  legal  aspects,  seem  very  different 
from  each  other."  4  The  highest  form  of  socage  is 
that  where  the  vassal  pays  a  fixed  rent  to  the  lord; 
the  rent  may  be  payable  either  in  money  or  produce, 
and  the  amount  of  the  rent  may  be  either  nominal  or 
substantial.  A  lower  form  of  socage  is  found  in  cases 
where  the  vassal .  was  bound  to  render  or  furnish 
services  on  his  lord's  land.  In  such  cases  of  socage, 
however,  the  services  required  would  be  absolutely 
certain.  Free  socage  is  the  only  tenure  that  ever 
existed  in  America. 

Closely  allied  to  free  socage  was  burgage  tenure, 
with  its  special  rule  of  inheritance  by  which  property 
held  under  this  tenure  went,  not  to  the  oldest,  but,  to 
the  youngest  son  of  the  holder. 

Villein  tenure  was  the  great  unfree  tenure.  A 
villein  was  a  serf  rather  than  a  slave.  He  was  annexed 
to  the  land,  given  a  small  allotment  for  his  own  sup- 

1  Littleton,  Section  153.  of  English  Law.    Volume  I,  p. 

4  Pollock  and  Maitland's  History  271.     1st  Edition. 


150  LEGAL   HISTORY. 

port,  and  compelled  to  work  the  greater  part  of  his 
time  for  the  benefit  of  his  lord.  Villeinage  was  both 
a  personal  status  and  a  tenure.  A  man  personally 
free  might  hold  by  a  villein  tenure.  His  only  advan- 
tage over  his  neighbor,  who  held  by  the  same  tenure  and 
was  also  a  villein  by  status,  was  that  he  was  free  to 
leave  the  land.  But  the  average  man  who  would  take 
such  a  step  in  the  days  of  feudalism  would  be  com- 
pelled to  choose  between  being  starved  or  becoming  an 
outlaw.  The  services  required  of  a  villein  would  seem 
in  early  times  to  have  depended  entirely  upon  the  will 
of  his  lord,  but  later  his  rights  became  somewhat  pro- 
tected by  what  were  known  as  the  customs  of  the  manor. 
Peculiar  privileges  were  enjoyed  by  villeins  upon  the 
King's  manors,  and  these  privileges  were  continued 
even  if  the  manor  was  granted  away  by  the  King. 

Sokemanry  was  a  tenure  on  the  dividing  line 
between  the  free  and  the  unfree.  The  exact  character 
of  this  tenure  is  not  clearly  known  and  cannot  be  dis- 
cussed in  detail  in  this  work. 

In  addition  to  the  lay  tenures  already  treated, 
there  were  certain  religious  tenures  by  which  the 
church  held  the  extensive  lands  granted  to  them. 
These  tenures  were  known  as  frankalmoin  and  tenure 
by  divine  service;  under  the  latter  tenure  the  religious 
services  to  be  rendered  were  definite,  while  under  the 
former  the  lands  were  granted  for  the  general  good  of 
the  soul  of  the  grantor. 

SECTION  60.     INCIDENTS  OF  THE  FEUDAL  TENURES. 

In  addition  to  the  requirements  of  military  service, 
all  persons  holding  land  by  knight  service  were  sub- 
ject to  certain  incidental  obligations.  At  first  these 
were  merely  for  the  purpose  of  protecting  the  lord's 


THE   ENGLISH    COMMON   LAW.  151 

right  to  the  military  service,  but  they  continued  long 
after  the  military  service  had  closed,  and  became  great 
sources  of  hardship  to  the  tenant.  These  incidents 
may  be  briefly  summarized  as  follows : 

Aids  were  extraordinary  payments  which  tenants 
were  obliged  to  pay  on  certain  occasions;  by  Magna 
Charta  these  occasions  were  limited  to  three,  to  ransom 
the  lord,  to  knight  his  eldest  son,  and  once  to  marry 
his  eldest  daughter. 

Relief  was  the  payment  which  an  heir  or  tenant 
must  make  to  the  lord  upon  succeeding  to  his  estate. 
In  the  twelfth  century  the  relief  for  a  knight's  fee  was 
fixed  as  100  s.;  for  socage  land  at  one  year's  rent;  with 
no  fixed  sum  for  baronies  and  grand  serjeanties.5 

Heriots  were  originally  the  horses  and  arms  which 
the  lord  had  lent  to  his  vassal  and  which  he  had  the 
right  to  take  back  at  his  death;  later  the  right  was  that  of 
the  lord  to  take  the  best  chattel  of  the  deceased  tenant. 

The  right  of  wardship  was  the  right  of  the  lord 
to  act  as  guardian  of  an  infant  heir  of  one  of  his  tenants, 
receiving  the  profits  of  the  estate  and  only  paying  for 
the  present  support  of  the  heir  out  of  such  income. 
As  the  land  was  given  in  return  for  military  service, 
there  was,  in  theory,  no  great  injustice  in  the  lord 
receiving  the  income  during  such  time  as  the  tenant 
was  unable  to  render  such  services. 

The  greatest  hardships  involved  in  any  of  the  so- 
called  incidents  of  the  feudal  tenures,  were  those  arising 
out  of  the  right  of  the  lord  to  control  the  marriage  of 
his  tenant.  Originally  this  right  was  extremely  limited, 
extending  only  to  the  right  to  prohibit  the  marriage 
of  a  vassal  heiress  with  a  party  objectionable  to  the 
lord.  As  the  husband  of  such  heiress  would  have  to 

•  Glanvffle,  I.  X.  C.  4. 


152  LEGAL   HISTORY. 

render  the  military  services  due  for  the  land,  the  lord 
had  an  interest  in  preventing  such  land  falling  into  the 
hands  of  one  of  his  enemies.  Later  this  right  of  con- 
trol was  extended  over  the  marriage  of  the  male  heir, 
and  by  a  still  later  and  further  extension  the  lord  was 
not  only  permitted  to  prohibit  a  marriage  to  an  ob- 
jectionable party,  but  even  to  pick  out  a  wife  or  hus- 
band for  such  heir  or  heiress,  whom  they  were  obliged 
to  marry  under  penalty  of  a  heavy  fine.  For  a  long 
period  the  right  of  marriage  with  an  heir  or  heiress 
was  freely  and  openly  sold  by  the  feudal  overlords. 

SECTION  61.    THE  END  OF  THE  FEUDAL  SYSTEM. 

It  has  been  stated  that  the  feudal  system  was  the 
most  prominent  institution  of  the  Middle  Ages.  It 
was,  however,  absolutely  incompatible  with  the  spirit 
of  modern  times.  The  invention  of  gunpowder  ren- 
dered the  feudal  army  valueless;  the  increasing  im- 
portance of  commerce  in  tune  overthrew  the  feudal 
principles  of  land-ownership;  while  the  modern  theories 
of  personal  freedom  and  political  equality  were  incon- 
sistent with  the  feudal  relations  between  lord  and  vas- 
sal. Feudalism  in  England  received  its  death-blow  in 
the  War  of  the  Roses  during  the  fifteenth  century ;  legally 
however,  it  only  ceased  to  exist  with  the  passage  of 
the  statute  of  1660,  upon  the  restoration  of  Charles  II. 

SECTION  62.    EARLY  IMPORTANT   STATUTES  ON  THE 
LAW  OF  REAL  PROPERTY. 

No  statutes  marked  the  introduction  or  early 
development  of  the  feudal  system  of  land  tenure 
in  England.  The  English  law  of  real  property  during 
this  period  was  strictly  an  unwritten  and  customary 
one.  The  statutes  of  the  twelfth  century  which  created 
the  various  forms  of  all  real  actions  had  considerable 


THE    ENGLISH   COMMON   LAW.  153 

indirect  influence  upon  the  law  of  real  property,  but  it 
was  not  until  near  the  close  of  the  thirteenth  century 
that  we  have  any  important  statutes  on  the  substantive 
law  of  real  property.  The  statute  of  13  Edward  I, 
known  as  the  Statute  of  De  Donis,  abolished  the  estate 
known  as  the  fee  conditional,  which  often  failed  to 
accomplish  the  purpose  of  the  grantor,  and  substituted 
the  new  form  of  estate  known  as  the  fee  tail.  A  full 
account  of  both  of  these  estates  will  be  found  under  the 
subject  of  Real  Property. 

Five  years  after  the  Statute  of  De  Donis  came  the 
Statute  of  Quia  Emptores  (18  Edward  I.— A.  D.  1290). 
Up  to  this  time,  the  alienation  of  land  had  been  pro- 
hibited, but  every  owner  had  been  allowed  to  subin- 
feudate  his  land  indefinitely,  this  statute  prohibited 
subinfeudation  and  legalized  the  alienation  of  land. 

SECTION  63.     EARLY  ADJECTIVE  LAW. 

Even  after  the  Norman  Conquest  adjective  law  in 
England  was  of  a  very  primitive  character.  The  trial 
by  battle,  oath  helpers,  and  the  various  ordeals  were 
the  principal  methods  employed  to  determine  the  truth 
of  the  claim  or  accusation,  and  no  logical  method  of 
weighing  the  value  of  evidence  had  yet  been  evolved. 
While  the  rules  of  procedure  and  evidence  were  unscien- 
tific and  ill-adapted  for  the  discovery  of  the  truth,  they 
were,  on  the  other  hand,  strictly  enforced  and  little  or 
no  discretion  was  allowed  to  the  presiding  judge.  For 
example,  where  a  continuance  was  sought  the  exact 
delay  which  might  be  granted  for  each  excuse  was 
definitely  set  out.  Nothing  was  left  to  the  discretion 
of  the  court  which  could  possibly  be  covered  by  general 
statutes  or  rules. 


154  LEGAL  HISTORY. 

SECTION  64.    THE  ORIGINAL  WRITS. 

"The  leading  principle  of  the  Norman  procedure 
was  undoubtedly  the  King's  writ.  It  replaced  the 
ancient  summons,  by  the  party  injured,  to  the  accused. 

'The  Court  of  Common  Pleas  had  no  jurisdiction 
without  the  King's  writ.  In  the  lesser  courts,  however,  as 
in  the  Court  Baron  or  the  Sheriff's  County  Court,  there 
was  no  original  writ,  but  a  plaint  only,  and  the  judge 
in  such  courts  was  bound  by  common  right  to  admin- 
ister justice  without  a  special  mandate  from  the  King. 

"The  writ  was  enforced  by  the  King's  deputy, 
the  sheriff,  backed  by  all  the  powers  of  the  Crown. 
Hence  the  claim  of  the  King  to  be  recompensed  for  his 
trouble  and  expense  in  maintaining  the  necessary 
officers  to  enforce  his  orders. 

'  'Further,  a  writ  was  not  a  matter  of  right,  but  an 
act  of  grace  from  the  King,  and  had  to  be  paid  for. 
This  custom  of  payment  developed  into  the  open  sale 
of  writs,  and  was  finally  met  by  the  famous  clause  of 
Magna  Charta,  'nulli  vendemus,  nulli  negabimus  aut 
differemus  rectum  aut  justiciam.'  We  can  trace  the 
survival  of  it  at  the  present  day  in  the  shape  of  court 
fees  and  stamps. 

"A  writ  in  its  primitive  form  does  not  appear  to 
have  had  any  connection  with  a  particular  suit,  but 
was  a  general  direction  to  do  right.  All  writs  were 
anciently  original  writs,  that  is,  writs  which  passed 
under  the  great  seal,  and  they  were  issued  out  of 
Chancery  (the  chanceUor's  office,  he  being  secretary  to 
the  King),  where  was  kept  a  register  of  the  original 
writs. 

"Original  writs  were  either  optional  or  preemptory. 
The  optional  writ  was  called  a  praecipe,  because  it  was 
in  the  form  of  a  'command'  to  the  defendant  to  redress 


THE   ENGLISH   COMMON    LAW.  155 

the  injury  or  stand  the  suit,  giving  him  his  choice. 
The  preemptory  writ  was  called  a  writ  si  fecerit  te 
securum,  because  'if  the  plaintiff  gave  security'  to  the 
sheriff  to  prosecute  his  suit,  the  sheriff  compelled  the 
defendant  to  appear  in  court,  without  giving  him  any 
option.  If  the  defendant  could  not  appear  he  might 
put  in  essoins  (essonium)  or  excuses  for  not  taking  a 
step  in  the  suit."6 

As  time  went  on  the  original  writ  became  more 
important  and  determined  the  whole  course  of  the  cause 
of  action.  Even  the  rules  governing  the  introduction 
of  evidence  would  vary  in  different  causes  in  accordance 
with  the  character  of  the  writ  which  marked  the  begin- 
ning of  the  litigation.  The  number  of  these  original 
writs  was  very  large,  the  exact  number  it  is  impossible 
to  determine.  For  example,  the  Writ  of  Entry,  may 
be  considered  as  a  single  writ  or  as  a  general  term  for 
a  dozen  or  more  separate  writs.  The  following  list  of 
writs  which  we  find  on  the  roll  of  the  common  bench 
of  the  Easter  Term  of  1271  will  serve  to  illustrate  the 
multiplicity  and  diversity  of  these  writs:  Miscella- 
neous Actions  for  Land,  185;  Writ  of  Right,  12;  Writ 
of  Entry,  21;  Novel  Disseisin,  5;  Mort  d' Ancestor,  7; 
Aiel,  Besail,  Cosinage,  8;  De  Rationabili  Parte,  2; 
Nuper  Obiit,  1;  Little  Writ  of  Right,  1;  Monstraver- 
unt,  2;  Right  of  Adowson,  1 ;  Darrein  Presentment,  15; 
Quare  impedit,  Quod  permittat  presentare,  Quare  non 
admisit,  14;  Assize  Utrum,  6;  Quare  eiecit  infra- 
terninum,  3;  Dower,  189;  Escheat,  1;  Quod  permittat 
habere,  7;  Quod  permittat  fugare,  1;  Quare  levavit 
mercatum,  1;  Quod  reparari  faciat  stagnum,  1;  Quo 
iure,  1;  Customs  and  Services,  15;  Mesne,  17;  Writs 
relating  to  wardships,  12;  De  nativo  habendo,  10; 

8  White's  Outline  of  Legal  History,  pages  64  and  65. 


156  LEGAL   HISTORY. 

Quare  non  permittat  se  talliari,  1;  Warantia  Cartae, 
26;  Per  quae  servicia,  1;  De  Fine  Facto,  9;  Waste,  1; 
Account,  8 ;  Annuity,  18 ;  Quare  subtrahit,  1 ;  Covenant, 
35;  Debt,  53;  Detinue,  11;  Deceit,  1;  Rescue,  2; 
Replevin,  35;  Statutory  Actions  for  unlawful  distress, 
11;  Trespass,  85;  Actions  analogous  to  Trespass,  3; 
Appeal  of  homicide,  3;  Appeal  of  robbery,  4;  Appeal 
of  wounds  and  mayhem,  1 ;  Appeal  of  imprisonment,  1 ; 
Appeal  of  felony  (unspecified),  1;  False  judgment,  6; 
Error,  1;  Prohibition,  11. 

The  following  additional  forms  of  writs  which  do 
not  appear  during  the  Easter  Term  of  1271  are  to  be 
found  in  near-by  terms : 

De  Rationabilibus  Divisis,  1 ;  Formedon,  1 ;  Quod 
permittat  prosternere,  3;  De  secta  ad  Molendium,  2; 
Quod  capiat  homagium,  2;  De  libertate  probanda,  2; 
Appeal  of  larceny  (by  approvers),  3;  Appeal  of  rape, 
11;  Attaint,  3;  Certification,  I.7 

SECTION    65.    THE    STATUTE    OF    WESTMINSTER    II. 

Although  these  original  writs  were  thus  very 
numerous,  the  extent  of  the  jurisdiction  of  each  writ 
was  very  limited.  For  example,  the  famous  Assize  of 
Mort  d' Ancestor  could  be  used  to  recover  land  of  which 
the  plaintiff  claimed  as  either  the  heir  of  his  father, 
mother,  uncle,  aunt,  brother,  or  sister,  but  could  not 
however,  be  extended  to  cover  the  case  where  the  land 
was  claimed  as  the  heir  of  the  grandfather  or  cousin, 
and  new  actions  were  necessary  to  provide  for  such 
cases. 

In  early  times  the  Clerks  of  Chancery  to  whom 
the  duty  of  issuing  these  original  writs  fell,  were  per- 
mitted to  issue  new  writs  to  cover  new  cases  as  they 

7  Pollock  and  Maitland's  History  of  English  Law.    Volume  II,  page  563. 
First  Edition. 


THE   ENGLISH   COMMON   LAW.  157 

arose.  Afterwards,  however,  for  reasons  explained  later 
in  this  work,  this  right  was  taken  from  them,  with  the 
result  that  the  common  law  became  very  rigid  and 
failed  absolutely  to  furnish  relief  in  many  cases  where 
rights  or  wrongs  undoubtedly  existed. 

An  attempt  was  made  to  remedy  this  by  the  pro- 
vision of  the  Statute  of  Westminster  II,  that  the 
Clerks  in  Chancery,  should  be  authorized  to  issue 
writs  in  cases  which  could  not  be  brought  under  any 
of  the  existing  forms  of  writs  but  which  were  similar  to 
cases  covered  by  the  existing  writs.  This  statute  was  the 
basis  for  a  few  new  forms  of  action  (e.  g.,  Trespass  on 
the  Case,  Trover,  Assumpsit,  etc.,  which  will  be  dis- 
cussed under  the  subject  of  Common  Law  Pleading) 
but  did  not  entirely  remedy  the  existing  conditions. 
For  this  purpose  a  supplemental  system  of  jurispru- 
dence was  found  necessary.8 

SECTION  66.    CRIMINAL  LAW. 

It  is  very  difficult  to  write  a  brief  account  of  any 
early  criminal  system  which  will  convey  much  meaning 
to  any  person  unfamiliar  with  the  subject.  The  most 
fundamental  underlying  principles  of  criminal  law  are 
so  different  in  all  early  systems  from  those  with  which 
we  are  accustomed  today,  that  almost  every  term 
or  expression  used,  itself  requires  an  explanation. 

England,  during  the  early  Norman  Conquest,  was 
in  the  transitory  stage  from  the  old  system  of  blood 
feuds  and  individual  vengeance  to  the  system  where  all 
members  of  the  community  (at  least  in  theory)  sub- 
mit their  wrongs  to  the  decision  of  the  regular 
tribunals.  One  of  the  most  striking  characteristics 
of  the  English  criminal  law  of  this  period  was  the 
procedure  known  as  Outlawry. 

"Though  we  must  not  speculate  about  a  tune  in 

1  For  an  account  of  the  subject  of  Chapter  VIII  and  also  the  sub- 

Equity    Jurisprudence,     see  ject  of  Equity  Jurisprudence. 


158  LEGAL   HISTORY. 

which  there  was  no  law,  the  evidence  which  comes  to 
us  from  England  and  elsewhere  invites  us  to  think  of  a 
time  when  law  was  weak,  and  its  weakness  was 
displayed  by  a  ready  recourse  to  outlawry.  It  could 
not  measure  its  blows;  he  who  defied  it  was  outside 
its  sphere;  he  was  outlaw.  He  who  breaks  the  law 
has  gone  to  war  with  the  community;  the  community 
goes  to  war  with  him.  It  is  the  right  and  duty  of 
every  man  to  pursue  him,  to  ravage  his  land,  to  burn 
his  house,  to  hunt  him  down  like  a  wild  beast  and  slay 
him;  for  a  wild  beast  he  is;  not  merely  is  he  a  'friend- 
less man, '  he  is  a  wolf.  Even  in  the  thirteenth  century, 
when  outlawry  had  lost  its  exterminating  character 
and  had  become  an  engine  for  compelling  the  contu- 
macious to  abide  the  judgment  of  the  courts,  this  old 
state  of  things  was  not  forgotten;  Caput  gerat  lupinum 
— in  these  words  the  courts  decreed  outlawry.  Even 
in  the  nineteenth  century  the  King's  right  to  'year, 
day  and  waste'  of  the  felon's  land  remained  as  a 
memorial  of  the  tune  when  the  decree  of  outlawry  was 
a  decree  of  fire  and  sword. 

"A  ready  recourse  to  outlawry  is,  we  are  told,  one 
of  the  tests  by  which  the  relative  barbarousness  of 
various  bodies  of  ancient  law  may  be  measured.  Grad- 
ually law  learns  how  to  inflict  punishment  with  a 
discriminating  hand.  In  this  respect  some  of  the 
Scandinavian  codes,  though  of  comparatively  recent 
date,  seem  to  represent  an  earlier  stage  than  any  to 
which  our  Anglo-Saxon  dooms  bear  witness;  outlawry 
in  them  is  still  the  punishment  for  many  even  of  the 
smaller  deeds  of  violence.  Among  our  English  fore- 
fathers, when  they  were  first  writing  down  their  cus- 
toms, outlawry  was  already  reserved  for  those  who 
were  guilty  of  the  worst  crimes."  9 

9  Pollock  and  Maitland's  History  of  English  Law,  Volume  U,  pages  447-448, 
First  Edition. 


THE   ENGLISH   COMMON   LAW.  159 

It  is  during  the  twelfth  and  thirteenth  centuries 
that  torts  and  crimes  became  separate.  Money  pay- 
ments in  atonement  for  crimes  still  continued.  The 
fines  for  the  greater  offenses  gradually  became  so  high 
as  to  mean  being  sold  into  slavery,  for  the  poorer 
classes.  Gradually  a  distinction  began  to  be  made 
between  those  crimes  for  which  money-payment 
could  be  accepted  and  those  for  which  it  could 
not.  We  find  here  the  beginning  of  the  distinction 
between  felonies  and  misdemeanors.  Capital  punish- 
ment was  abolished  by  William  the  Conqueror,  but  was 
soon  restored. 

SECTION  67.    JURY  TRIAL. 

The  most  fundamental  characteristic  of  the  Eng- 
lish common  law,  on  both  its  civil  and  criminal  side, 
is  that  of  trial  by  jury.  Although  the  pride  of  the 
English  race,  this  legal  institution  is  not  of  indigenous 
growth.  Many  origins  for  the  jury  have  been  sug- 
gested but  the  probabilities  are  that  it  is  an  outgrowth 
of  the  Prankish  Inquest.  The  members  of  the  Frank- 
ish  Inquest,  and  of  the  early  jury,  were  men  who  were 
supposed  to  be  in  a  position  to  judge  from  their  own 
knowledge  as  to  the  truth  of  the  controversy.  They 
combined  within  themselves  the  dual  character  of  wit- 
nesses and  judges.  Trial  by  inquest  became  the 
method  of  trial  in  the  four  so-called  petty  assizes 
(Utrum,  disseisin,  mort  d 'ancestor,  and  darrein  pre- 
sentment). 

"Trial  by  jury,  in  the  narrowest  sense  of  that  term, 
trial  by  jury  as  distinct  from  trial  by  an  assize,  slowly 
creeps  in  by  another  route.  The  principle  from  which 
it  starts  is  simply  this,  that  if  in  any  action  the  litigants 
by  their  pleadings  come  to  an  issue  of  fact,  they  may 
agree  to  be  bound  by  the  verdict  of  a  jury,  and  will  be 


160  LEGAL   HISTORY. 

bound  accordingly.  In  course  of  time  the  judges  will 
in  effect  drive  litigants  into  such  agreements  by  saying 
'You  must  accept  your  opponent's  offer  of  a  jury  or 
you  will  lose  your  cause;'  but  in  theory  the  jury  only 
comes  in  after  both  parties  have  consented  to  accept 
its  verdict."10 

The  right  of  trial  by  jury  was  for  a  long  time 
confined  to  certain  forms  of  action;  in  other  forms  the 
wager  of  law  and  the  wager  of  battle  were  permitted 
even  as  far  down  as  the  nineteenth  century.  This 
state  of  affairs  largely  accounts  for  the  disappearance 
of  certain  actions  and  the  growth  of  others.  The  old 
forms  which  still  permit  the  wager  of  law  and  the 
wager  of  battle  become  obsolete  and  the  newer  forms 
which  carry  with  them  the  jury  trial  take  their  place. 

SECTION  68.    DOMESTIC  RELATIONS. 

The  exact  state  of  the  law  relative  to  marriage 
in  the  early  Norman  period  is  a  matter  of  much  uncer- 
tainty. In  spite  of  some  authorities  to  the  contrary, 
it  is  quite  certain  that  no  religious  ceremony,  or  in 
fact,  any  ceremony  of  any  kind,  was  required  for  a  legal 
marriage.  The  so-called  common  law  marriage  was 
probably,  for  some  centuries,  the  most  common  kind. 
Great  stress  was  laid  upon  the  question  as  to  the  present 
or  future  tense  of  the  promise.  The  distinction  be- 
tween these  two  forms  of  common  law  marriage  will  be 
discussed  under  the  subject  of  Domestic  Relations. 
The  contest  between  the  common  law  courts  and  the 
ecclesiastical  courts  for  jurisdiction  did  much  to 
occasion  confusion  in  this  branch  of  the  law.  In  many 
suits,  the  litigants  would  be  compelled  to  go  backward 
and  forward  between  the  two  courts  on  account  of  the 

10  Pollock  and  Maitland's  History  of  English  Law,  Volume  I,  page  128,  First 
Edition. 


THE   ENGLISH   COMMON   LAW.  161 

inability  of  either  to  render  a  decision  covering  the 
whole  subject. 

Two  forms  of  divorce  existed  in  the  early  common 
law  period.  The  absolute  divorce,  a  vinculo  matri- 
monii,  and  the  divorce  a  mensa  et  thoro,  corresponding 
closely  to  our  present  separate  maintenance.  The 
control  of  the  husband  over  both  the  property  and 
person  of  his  wife,  was  absolute.  The  rights  and  duties 
of  the  parents  toward  their  children  were  not  very 
different  from  those  existing  at  the  present  tune. 
The  extreme  right  of  the  father  over  the  child  existing 
in  the  Roman  law  never  was  introduced  into  England. 
Adoption  was  unknown  in  the  early  common  law. 
Bastards  were  considered  the  sons  of  nobody,  and 
had  no  right  of  support  or  inheritance.  The  common 
law  never  divided  bastards  into  different  classes  with 
various  degrees  of  rights,  as  was  the  case  with  all 
continental  systems.  For  example,  Las  Siete  Partidas, 
the  most  important  Spanish  code  of  the  middle  ages, 
divided  this  class  of  children  into  seven  classes. 
SECTION  69.  EARLY  CONTRACT  LAW. 

Contract  Law  occupies  a  very  unimportant  place 
in  the  early  Common  Law.  As  in  all  other  Teutonic  law 
systems,  we  find  only  formal  and  real  contracts.  The 
consensual  contract  was  absolutely  unknown.  Gran- 
ville  enumerates  the  following  early  real  contracts: 
mutuum,  commodatum,  depositum,  locatum,  vadium 
and  emptio-venditio.  The  first  five  were  forms  of 
bailment,  the  latter  a  form  of  bargain  and  sale  the 
theory  of  which  was  very  different  from  that  existing 
at  the  present  time. 

In  addition  to  the  real  contract  the  formal  sealed 
contract  was  growing  up  at  the  time  Granville  wrote. 
The  difficulty  of  establishing  disputed  facts  before  a 

I.— 11. 


162  LEGAL   HISTORY. 

court  gave  particular  force  to  a  sealed  instrument,  and 
this  was  long  the  only  method  of  proof  of  any  existing 
contract  other  than  a  real  one.  Debt  was  in  early 
tunes,  considered  as  in  the  nature  of  a  real  action. 

SECTION  70.    DEVELOPMENT  OF  CONTRACT  LAW. 

A  rapid  development  of  the  Contract  Law  began 
in  the  twelfth  century.  Several  causes  contributed 
to  this  result.  The  increased  wealth  and  commerce 
of  the  country  made  a  more  convenient  and  highly 
developed  system  of  contract  law  an  absolute  neces- 
sity. The  surrender,  by  the  Constitution  of  Clarendon, 
by  the  ecclesiastical  courts,  of  their  claims  to  jurisdic- 
tion over  this  subject  threw  the  work  upon  the  common 
law  courts.  The  Statute  of  Westminster  II,  by  fur- 
nishing the  action  of  assumpsit,  gave  a  convenient 
method  by  which  contracts  other  than  the  real  and 
formal  ones  could  be  enforced.  The  development 
of  the  contract  law  of  England  is  closely  connected 
with  the  growth  of  this  action  and  will  be  discussed 
under  Subject  34,  "Common  Law  Pleading. "  Ad- 
ditional treatment  of  contract  law  will  also  be  found 
under  Subejct  6,  "Contracts." 

SECTION  71.    CONTEST  BETWEEN  THE  COMMON  LAW 

AND  THE  ClVIL  AND  CANON  LAW. 
It  has  been  seen  how  Roman  laws  and  institutions, 
which  survived  on  the  continent  after  the  Teutonic 
conquest,  failed  to  do  so  in  the  British  Isles.  The 
influence  of  the  Roman  law  was  to  be  felt,  however, 
in  England  at  a  later  period.  Some  slight  knowledge 
of  the  Roman  law  came  across  with  the  lawyers  who 
followed  William  the  Conqueror  after  the  Norman 
Conquest,  but  it  was  not  until  the  next  century  that 
it  began  to  exert  any  marked  influence  upon  England. 
The  twelfth  century  was  throughout  all  Western 


THE   ENGLISH   COMMON   LAW.  163 

Europe  a  century  of  revived  interest  and  diligent  study 
of  the  Roman  law;  it  was  lamented  by  some  writers 
of  that  period,  that  all  other  branches  of  learning  were 
neglected  in  the  sudden  enthusiasm  for  this  study 
which  had  seized  upon  scholars.  The  early  medieval 
laws  of  Western  Europe,  based  upon  corrupted  codes 
of  Roman  law,  still  further  corrupted  by  the  infusion 
of  the  laws  and  customs  of  the  Teutonic  conquerors, 
were  rapidly  replaced  by  new  scientific  codes,  based 
as  closely  as  changed  conditions  would  allow,  upon 
the  old  Roman  codes  of  Theodosius  or  Justinian. 
Roman  law  principles,  moreover,  were  largely  the 
basis  of  the  new  system  of  canon  law  administered  in 
the  ecclesiastical  courts  of  the  Church,  whose  jurisdic- 
tion was  at  this  tune  being  rapidly  extended.  It  was 
in  its  two  forms  of  the  civil  and  canon  law  that  the 
Roman  law  invaded  England  during  this  twelfth 
century,  and  for  a  tune  the  extension  of  its  influence, 
along  both  these  lines,  was  very  rapid.  The  ecclesi- 
astical courts  of  the  Church,  administering  the  canon 
law,  rapidly  increased  their  jurisdiction;  while  the 
principles  of  the  civil  law  became  more  and  more 
resorted  to  by  the  judges  of  the  King's  courts  in  the 
regular  settlement  of  the  cases  which  came  before 
them.  For  a  time  it  seemed  that  what  had  been  done 
in  Western  Continental  Europe  was  about  to  be  re- 
peated in  England,  and  her  system  of  jurisprudence 
become  merely  a  branch  of  the  world  wide  Roman  law. 
Roman  law,  however,  was  meeting  in  England  a  far 
more  worthy  contestant  than  it  had  hitherto  en- 
countered. The  old  English  common  law  system,  dating 
back  into  Anglo-Saxon  times  to  the  days  of  the  seven 
kingdoms,  numbering  among  its  creators  such  men 
as  Ine,  Aelfred,  and  Dunstan;  the  combination  of  all 


164  LEGAL  HISTORY. 

that  was  best  in  the  laws  of  the  West  Saxon,  and 
Mercian,  and  the  other  kingdoms;  enriched  and 
strengthened  by  the  work  of  Dane  and  Norman,  had 
become  a  part  of  the  very  life  of  the  English  people. 
It  was  a  system  less  scientific,  less  carefully  worked 
out  than  the  Roman  law,  but  one  containing  within 
itself  certain  elements  of  rugged  strength  in  which  the 
old  system  was  lacking.  It  was,  moreover,  a  system 
adapted  to  the  needs  of  the  people  and  times  in  which 
it  existed.  The  result  was  a  resistance  on  the  part  of 
the  English  people  to  the  Roman  law,  which  saved  for 
themselves  their  own  national  laws,  and  resulted  in  the 
existence  of  two  great  systems  of  laws  in  the  world 
instead  of  one.  The  encroachments  of  the  ecclesias- 
tical courts  were  checked  in  1164,  when  Henry  II 
forced  upon  the  Church  the  Constitution  of  Clarendon, 
which  put  definite  limits  upon  the  jurisdiction  of  these 
courts.  The  introduction  of  Roman  law  principles 
into  the  English  law  continued  down  to  the  Assize  of 
Merton,  in  1238,  when,  to  a  new  proposal  to  change 
the  English  law  to  correspond  with  the  Roman  law, 
the  barons  of  England  returned  their  historic  reply: 
"Nolumus  leges  Angliae  mutare."  (We  do  not  wish 
to  change  the  laws  of  England.)  The  contest  between 
the  Roman  law  and  the  English  common  law  was  now 
over  and  the  English  common  law  remained  the 
victor  in  the  field.  The  effect  upon  itself,  of  the  con- 
test, however,  still  remained.  Not  only  had  it  been 
modified  by  the  various  Roman  law  principles  which 
had  been  adopted,  but  it  also  had  been  affected  in  a 
diametrically  opposite  direction.  The  long  and  hard 
fought  contest  which  the  people  of  England  had 
waged  for  their  old  English  laws  had  had  the  natural 
tendency  to  greatly  enhance  their  affection  for  those 


THE   ENGLISH   COMMON   LAW.  165 

laws.  The  English  common  law  had  become  some- 
thing sacred;  something  not  to  be  lightly  altered; 
"nolumus  leges  Angliae  mutare"  had  become  the  motto 
of  the  English  people,  and  the  result  was  that  the 
English  law  became  rigid,  and  ill  adapted  to  meet 
newly  arising  conditions.  Especially  was  this  true  in 
the  field  of  the  adjective  law.  As  already  stated  there 
existed  certain  original  writs,  creating  certain  forms 
of  relief,  and  if  a  person  had  a  case  which  entitled  him 
to  receive  one  of  these  writs  he  could  obtain  relief; 
otherwise  the  law  was  powerless  to  aid  him.  It  has 
been  shown  how  the  attempt  to  remedy  this  state 
of  affairs  by  the  twenty-fourth  chapter  of  the 
Statute  of  Westminster  II,  granting  to  the  'clerks  in 
chancery  the  power  to  issue  writs  "in  consimile  casu," 
failed,  on  account  of  the  liberal  interpretation  of  this 
statute  which  would  have  done  much  towards 
remedying  this  defect,  not  being  given  to  it.  The 
result  of  this  state  of  affairs  was  the  development 
of  the  system  of  equity  jurisprudence  described  in 
the  following  chapter. 

SECTION  72.     IMPORTANT  STATUTES  OF  THE  SIXTEENTH 

AND  SEVENTEENTH  CENTURIES. 
The  sixteenth  and  seventeenth  centuries  witnessed 
the  passage  of  a  number  of  important  English 
statutes,  which  have  been  brought  to  America  and 
constitute  part  of  our  present  system  of  laws.  In 
1535  the  famous  Statute  of  Uses  (27  Henry  VIII) 
was  passed.  This  statute  will  be  fully  treated  in  the 
next  chapter  and  under  the  subject  of  Equity  Juris- 
prudence. The  same  year  saw  the  passage  of  the 
statute  requiring  the  enrollment  or  registration  of  all 
deeds  of  Bargain  and  Sale.  By  the  Statute  of  Wills 
(32  Henry  VIII)  it  was  provided  that  any  person  might 


166  LEGAL  HISTORY. 

dispose  of,  by  will,  two-thirds  of  his  land  held  in  chivalry 
and  all  of  his  land  held  by  socage  tenure.  In  the  fifth 
year  of  Edward  VI  it  was  enacted  that  the  testimony  of 
two  witnesses  should  be  required  to  convict  of  treason. 
During  the  reign  of  Elizabeth,  there  was  passed  the  action 
against  fraudulent  deeds,  alienation,  etc.  (13  Elizabeth, 
Chap.  V)  and  the  Statute  of  Charitable  Uses  (43  Eliz- 
abeth, Chap.  Ill),  which  will  be  considered  under  the 
subject  of  Equity  Jurisprudence.  The  reign  of  Charles 
II  (1660-1685)  has  well  been  described  as  a  period  of 
good  laws  and  bad  government.  Upon  his  accession  to 
the  throne,  the  vexatious  incidents  of  different  feudal 
tenures  were  abolished  by  a  law  entitled  '  'an  act  taking 
away  the  courts  and  wards  and  livers  and  tenures  in 
capite,  and  by  knights  in  service,  and  purveyance,  and 
for  settling  a  revenue  upon  his  Majesty  in  lieu  thereof." 
Sixteen  years  later  was  passed  the  famous  statute  of 
Frauds  (29  Charles  II,  Chap.  Ill)  the  text  of  which  will 
be  found  in  full  as  Appendix  0.  Three  years  after- 
wards the  so-called  Habeas  Corpus  action  regulat- 
ing the  service  and  return  of  this  writ  was  enacted 
(31  Charles  II,  Chap.  II). 


CHAPTER  VIII. 
EQUITY  JURISPRUDENCE. 
SECTION  73.    RIGIDITY  OF  THE  COMMON  LAW. 

'  'Every  true  definition  of  equity  must  be,  to  a 
greater  or  less  extent,  a  history."  Both  at  its  origin 
and  throughout  its  whole  existence  Equity  Jurispru- 
dence has  existed  as  a  system  of  laws  supplemental  to 
the  English  common  law.  Bound  by  the  principle  that 
"equity  follows  the  law,"  the  jurisdiction  of  the  latter 
system  has  always  been  limited  to  cases  of  a  character 
for  which  the  earlier  and  more  basic  system  failed  to 
provide. 

So  long  as  the  common  law  was  in  the  process  of 
formation,  it  was  capable  of  being  extended  to  cases  not 
expressly  provided  for,  but  which  were  within  the 
spirit  of  the  existing  law.  Some  discretion  existed 
with  the  early  judges  where  circumstances  arose  which 
called  for  special  applications  of  the  general  legal 
principles.  In  course  of  time  the  decisions  of  the 
judges  had  created  a  series  of  precedents  which  were 
considered  as  of  almost  equally  binding  authority  on 
succeeding  judges  as  were  the  acts  of  the  great  council. 
The  common  law  had  now  become  in  effect  a  system  of 
written  law.  It  is  to  this  crystallization  of  the  old  com- 
mon law  customs  into  written  decisions  that  many  legal 
historians  assign  the  evolution  of  the  law  into  that 
form  which  rendered  further  development  impractical, 
and  created  the  necessity  for  a  new  and  supplemental 
system  of  jurisprudence. 

167 


168  LEGAL   HISTORY. 

The  rigidity  of  the  common  law  during  the  thir- 
teenth and  fourteenth  centuries,  however,  may  be  more 
properly  ascribed  to  a  far  different  cause.  To  appre- 
ciate the  origin  and  development  of  this  new  influence 
in  English  law  requires  a  brief  return  to  the  long  contest 
between  the  common  law  and  the  Roman  law  which 
has  been  described  in  Section  71.  The  contest  between 
the  Roman  law  and  the  English  common  law  was  finally 
over  and  the  English  common  law  remained  the  victor 
in  the  field.  The  effects  upon  itself,  of  the  contest, 
however,  still  remained ;  not  only  had  it  been  modified 
by  the  various  Roman  law  principles  which  had  been 
adopted,  but  it  also  had  been  affected  in  a  diametrically 
opposite  direction.  The  long  and  hard  fought  contests 
which  the  people  of  England  had  waged  for  their  old 
English  laws  had  had  the  natural  tendency  to  enhance 
greatly  their  affection  for  those  laws.  The  English 
common  law  had  become  something  sacred ;  something 
not  to  be  lightly  altered.  The  result  was  that  the  Eng- 
lish law  became  rigid,  and  ill  adapted  to  meet  newly  aris- 
ing conditions.  Especially  was  this  true  in  the  field  of  the 
adjective  law.  There  existed  certain  original  writs,  cre- 
ating certain  forms  of  relief,  and  if  a  person  had  a  case 
which  entitled  him  to  receive  one  of  these  writs  he 
could  obtain  relief ;  otherwise  the  law  was  powerless  to 
aid  him.  An  attempt  was  made  to  remedy  this  state  of 
affairs  by  the  twenty-fourth  chapter  of  the  Statute  of 
Westminster  II,  granting  to  the  clerks  in  Chancery  the 
power  to  issue  writs  "in  consimilu  casu."  A  liberal 
construction  of  this  statute  would  have  done 
much  to  remedy  existing  conditions,  but  a  liberal 
interpretation  was  not  given  to  it.  The  statute  created 
a  few  new  forms  of  action,  such  as  trespass  on  the  case, 
assumpsit,  etc.,  and  then  its  influence  stopped.  The 


EQUITY   JURISPRUDENCE.  169 

common  law  soon  became  as  rigid  as  before  and  cases 
frequently  arose  where  the  party  wronged  could  obtain 
no  redress  under  the  existing  law  and  modes  of  pro- 
cedure. 

SECTION  74.    BEGINNINGS  OF  EQUITY  JURISPRUDENCE. 

In  such  cases,  one  last  resort,  and  only  one,  was 
left  to  the  party  needing  relief.  The  King  was  still 
considered  as  the  head  of  the  judicial  system  of  the 
country,  and  the  fount  from  which  all  justice  was  ulti- 
mately derived.  It  was  in  his  power,  if  he  so  desired, 
to  sit  as  a  judge  in  any  of  his  courts;  it  was  in  his  power 
to  grant  extraordinary  relief  in  special  cases.  A  direct 
petition  to  the  King  was  therefore  the  course  pursued 
by  those  who  could  not  obtain  redress  at  the  common 
law,  either  because  of  the  defects  of  that  system,  or 
because  of  the  power  and  high  position  of  their  antag- 
onists. The  King,  being  too  busy  to  deal  with  these 
matters  himself,  referred  them  to  the  various  high 
officials  of  his  court,  and  gradually  he  began  to  refer 
them  more  and  more  to  his  Chancellor,  until  finally, 
the  Chancellor  had  jurisdiction  in  all  such  cases  and 
petitions  began  to  be  addressed  to  the  Chancellor 
directly,  instead  of  to  the  King.  For  nearly  three 
centuries  we  find  equity  jurisdiction  in  what  might  be 
called  its  formulative  state.  The  theory  of  the  equity 
judges  was  largely  summed  up  in  the  equitable  maxim: 
*  'Equity  will  not  suffer  a  right  to  be  without  a  remedy." 
During  this  period  new  classes  of  cases  were  constantly 
taken  jurisdiction  of,  and  new  methods  of  relief  granted, 
by  the  authority  of  the  judges  themselves,  and  without 
any  parliamentary  sanction.  Finally,  near  the  begin- 
ning of  the  seventeenth  century,  this  formulative  period 


170  LEGAL   HISTORY. 

came  to  an  end;  a  general  outline  of  equity  jurisdiction 
had  become  established  and  equity  jurisdiction  could 
no  longer  be  extended  by  the  authority  of  its  own 
judges. 

The  extraordinary  or  equitable  jurisdiction  of  the 
court  of  Chancery  seems  to  have  been  permanently 
established  as  a  distinct  system  of  jurisprudence  during 
the  reign  of  Edward  III.  This  may  perhaps  be  mainly 
attributed  to  the  writ  or  ordinance  of  the  twenty-second 
year  of  his  reign  which  referred  all  petitions  addressed 
to  him  relating  to  matters  which  were  as  "of  grace " 
to  the  Chancellor  or  keeper  of  the  privy  seal.  In  spite 
of  this  writ,  however,  questions  of  this  character  were 
still  referred  at  times  to  the  Great  Council  or  the  Privy 
Council.  The  exclusive  jurisdiction  of  the  Chancery 
court  dates  from  the  succeeding  reign,  in  which  petitions 
or  bills  (as  they  now  began  to  be  called)  began  to  be 
addressed  directly  to  the  Chancellor. 

SECTION  75.    EQUITY  JURISPRUDENCE  IN  THE  REIGN 
OF  RICHARD  II. 

The  reign  of  Richard  II.  witnessed  an  attack 
upon  the  growing  equitable  jurisprudence  by  the 
House  of  Commons.  The  various  grounds  of  complaint 
set  forth  by  this  body  were:  (1)  That  persons  were 
called  into  the  Court  of  Chancery,  not  upon  any  specific 
complaint,  but  quibusdam  certis  de  causis;  (2)  that 
persons  were  unlawfully  compelled  to  answer  in  this 
new  court  as  to  their  franc  tenement  (something  almost 
sacred  in  the  minds  of  landowners)  and  to  disclose  the 
titles  under  which  such  franc  tenements  were  held; 
and  (3)  that  the  course  of  proceeding  was  not  accord- 
ing to  the  common  law  but  to  that  of  the  Holy  Church 


EQUITY   JURISPRUDENCE.  171 

(t.  e.,  the  canon  law)  and  that  this  extraordinary  juris- 
diction was  employed  as  a  means  of  extortion.  This 
whole  remonstrance  is  directed  against  the  increasing 
jurisdiction  of  the  Court  and  not  against  its  existence. 

The  failure  of  the  House  of  Commons  to  secure 
the  reforms  above  mentioned  was  followed  by  the  pas- 
sage of  the  statute  of  17  Richard  II.,  C.  6,  providing 
that  where  persons  were  compelled  to  appear  before 
the  Court  of  Chancery  on  charges  found  to  be  untrue, 
the  Chancellor  should  have  the  power  to  award  dam- 
ages. Damages  to  defendants  in  cases  where  the 
charges,  although  true,  did  not  constitute  a  cause  of 
action  were  allowed  by  a  statute  of  the  reign  of  Henry 
V.  By  the  statute  of  15  Henry  VI.,  C.  4,  sureties  were 
required  for  the  payment  of  such  damages  before  the 
writ  of  subpoena  was  allowed  to  issue.  Sureties,  how- 
ever, were  required  as  a  matter  of  fact  from  the  reign 
of  Richard  II. 

It  was  also  in  the  reign  of  Richard  II.  that  the 
writ  of  subpoena  began  to  be  employed  regularly  in 
the  Court  of  Chancery.  The  invention  of  this  writ  is 
popularly  ascribed  to  John  de  Waltham,  who  was 
Master  of  the  Rolls  from  1381  to  1387.  This  reputation 
rests  for  its  support  upon  the  petition  of  House  of  Com- 
mons in  reign  of  Henry  IV.  praying  for  the  abolition  of 
this  new  and  obnoxious  writ  and  charging  its  invention 
to  the  "craft"  of  the  above  mentioned  official.  This  view 
of  the  origin  of  the  writ  is  certainly  erroneous.  There 
are  authenticated  instances  of  the  use  of  the  writ  as 
early  as  the  reign  of  Edward  III.  to  bring  cases  before 
Parliament.  This  writ,  in  fact,  differed  little  from  the 
older  writ  of  "quibusdam  certis  de  causis"  already 
much  used  by  the  Court  of  Chancery.  The  work  of 
John  de  Waltham  was  merely  the  adoption  of  the  writ 


172  LEGAL  HISTORY. 

of  subpoena  as  the  ordinary  method  of  bringing  defend- 
ant before  this  court.  The  increased  activity  of  the 
Court  of  Chancery  (due  to  other  causes)  immediately 
after  the  adoption  of  this  writ,  caused  both  contem- 
poraneous and  future  writers  to  attach  an  undue 
importance  to  the  event. 

The  principle  that  equity  was  only  a  supplemental 
system  of  law,  controlled  in  many  respects  by  the 
common  law,  appears  to  have  been  clearly  recognized 
by  both  law  and  equity  judges  during  the  early  centu- 
ries of  equity  jurisprudence.  We  find  Chief  Justice 
Coke  writing:  "He  who  knew  not  the  common  law 
could  never  judge  well  in  equity,  which  is  a  correction 
of  law  in  some  cases."  Common  law  judges  often  sat 
in  equity  cases.  For  example  in  Broderip  vs.  Gyfford 
it  is  recorded  that:  "The  matter  being  somewhat 
doubtful"  a  further  hearing  was  ordered,  at  which 
two  common  law  judges  were  called  in. 

SECTION  76.    FORMS  OF  EARLY  BILLS. 

The  early  forms  of  the  petitions  or  bills  in  chancery 
show  a  surprising  resemblance  to  those  of  a  more 
modern  date.  The  causes  for  going  into  equity  were, 
however,  somewhat  different  from  those  at  the  present 
time. 

"The  Court  of  Chancery  became  necessary  because 
it  was  found  that  the  courts  of  common  law  were,  from 
various  causes,  frequently  unable  to  do  justice  to  suitors. 
This  might  result  from  two  classes  of  reasons:  (1) 
From  the  inelasticity  of  its  principles  and  practice; 
(2)  from  the  peculiar  situation  of  the  parties  in  cases 
which  could  otherwise  have  been  dealt  with  at  common 
law. 

"The  first  of  these  classes  constitutes  what  came 


EQUITY   JURISPRUDENCE.  173 

at  a  later  date  to  be  called  equitable  matters — cases 
to  be  decided  in  Chancery  on  principles  peculiar  to 
itself. 

"The  second  class  were  not  concerned  in  any  way 
with  its  doctrines  of  equity;  and  some  time  towards 
the  end  of  the  fifteenth  century,  the  Court  of  Chancery 
ceased  to  deal  with  them  altogether.  In  the  early  days 
of  the  Court,  however,  such  cases  formed  by  far  the 
principal  bulk  of  the  work  of  the  Court."1 

The  cases  of  the  second  class  are  mostly  concerned 
with  the  power  and  violence  of  the  defendant,  as  can 
be  seen  from  the  following  examples  of  early  bills  of 
this  character: 

"To  the  most  honorable  and  most  reverend  Father 
in  God,  the  Bishop  of  Exeter,  Chancellor  of  England. 

"Complaineth  this  poor  chaplain,  David  Uspe, 
formerly  Vicar  of  the  church  of  Pawlett  in  the  County 
of  Somerset,  that  whereas  one  William  Bawe,  Parson 
of  the  church  of  Grenton  in  the  said  county,  on  the 
Friday  before  the  Feast  of  Pentecost  in  the  20th  year  of 
our  Lord  King  Richard,  who  now  is,  with  force  and  arms, 
and  six  other  men  unknown,  his  adherents,  with  him, 
fully  arrayed  in  arms  in  warlike  manner,  came  to  the 
said  church  of  Pawlett  when  the  said  David  was  vested 
for  mass,  before  he  had  said  the  Gospel  of  St.  John 
which  is  called  In  principio;  and  in  the  chancel  of  the 
said  church  he  commanded  the  said  David,  who  was 
at  his  altar,  vested,  to  take  off  his  vestments  and  to 
speak  with  them;  the  which  David  answered  and  said 
unto  them  that  he  would  not  take  off  his  vestments 
until  he  knew  their  will;  the  which  William  Bawe  and 
the  others  of  his  covin  said  expressly  that  they  would 
cut  off  his  head  if  he  would  not  make  fine  with  them 

1  Selden's  Society  Publications;  Select  Cases  in  Chancery. 


174  LEGAL   HISTORY. 

for  100  marks;  and  for  fear  of  this  menance,  the  said 
David  made  fine  and  ransom  with  the  said  William 
and  his  company  for  £10  sterling  in  order  to  save  his 
life.  And  after  the  said  William  and  his  company 
ransomed  the  said  David  in  manner  aforesaid,  the  said 
William  and  his  adherents  made  the  said  David  swear 
in  his  priestly  word  to  go  with  them  out  of  his  said 
church  to  the  town  of  Bridgewater,  and  there  they 
forced  him  to  make  a  bond  to  them  for  £20,  on  con- 
dition to  pay  the  said  £10  on  Friday  then  next  follow- 
ing; and  after  the  said  David  had  made  the  said  bond, 
the  said  William  and  his  adherents  compelled  the  said 
David  to  deliver  unto  them,  in  default  of  other  pay- 
ment, as  the  price  of  his  said  ransom,  all  his  sheep,  his 
lambs,  his  pigs,  and  his  other  goods,  on  the  Saturday 
in  the  eve  of  Pentecost  following  next  after  the  afore- 
said Friday  on  which  day  the  said  William  and  his 
company  took  the  goods  of  the  said  David  and  de- 
livered up  to  him  his  said  bond.  And  the  said  sheep, 
lambs,  and  other  goods,  they  brought  to  the  house  of 
the  said  William  at  Alverton,  and  they  are  still  there 
in  ward,  to  the  great  destruction  and  annihilation  of 
the  plaintiff's  poor  estates,  and  against  all  law  and 
right;  May  it  please  your  most  gracious  Lordship  to 
grant  the  said  David  a  writ  de  quibusdam  certis  de 
causis,  to  make  the  said  William  come  before  you  at 
a  certain  day  and  under  a  certain  pain  contained  in 
the  writ,  to  make  answer  to  this  bill;  for  God  and  in 
way  of  charity.  Having  consideration  that  the  said 
William  is  so  rich  and  strong  in  friends  in  the  country 
where  he  dwelleth,  that  the  said  David  will  never  re- 
cover from  him  at  common  law,  if  he  have  not  aid 
from  your  most  gracious  Lordship." 

"To  the  Most  reverned  Father  in  God,  and  most 


EQUITY   JURISPRUDENCE.  175 

gracious  Lord,  the  Bishop  of  Exeter,  Chancellor  of 
England. 

"Beseecheth  humbly  Simon  Hilgay,  parson  of  the 
church  of  Hilgay,  that  whereas  he  hath  charge  and 
cure  of  souls  of  the  same  parish,  and  is  menaced  by 
one  Robert  de  Wesnam,  and  by  John  at  Gotere,  John 
Bilney,  John  Walmer,  Robert  Walmer,  John  Mody 
and  Henry  at  Fen,  associated  and  confederated  with 
the  said  Robert  de  Wesnam;  and  they  do  menace  him 
from  day  to  day,  so  that  he  dare  not,  in  this  most  holy 
time  of  Lent,  approach  his  said  parsonage  to  hear  the 
confessions  of  his  parishioners,  for  fear  of  unmerited 
death;  and  for  the  purpose  of  their  evil  design,  the 
said  Robert  de  Wesnam,  with  the  others  above  named, 
on  the  Tuesday  in  the  first  week  on  Lent  last  past,  22 
Richard  II,  chased  and  pursued  the  said  suppliant 
with  force  and  arms,  to-wit,  naked  swords  drawn, 
clubs  and  bucklers,  from  the  town  of  Fincham  hi  the 
County  of  Norfolk  to  the  town  of  Crimplesham,  which 
are  two  leagues  distant,  in  order  to  have  killed  him, 
and  there  they  did  beat  one  John  Ouere,  who  was  in 
his  company  at  that  time;  and  moreover,  considering 
that  the  said  Robert  de  Wesnam  hath  so  many  evil- 
doers associated  and  confederated  with  him,  and  is  of 
such  horrible  maintenance,  so  that  the  said  suppliant 
can  never  come  to  his  recovery  against  him  and  the 
others  at  common  law  without  your  most  gracious 
aid;  May  it  please  your  most  gracious  Lordship  to 
consider  the  matter  aforesaid  and  thereof  to  make 
tight  and  remedy  for  the  said  suppliant  according  to 
your  most  wise  discretion;  For  God  and  in  way  of 
charity. 

"Indorsed.  By  virtue  of  this  supplication  the 
within  written  Simon  Hilgay,  parson  of  the  church  of 


176  LEGAL  HISTORY. 

Hilgay,  hath  four  writs  directed  to  the  persons  within 
written  (commanding  them)  to  be  before  the  King 
and  his  Council  in  his  Chancery  on  the  Thursday  after 
the  feast  of  S.  Gregory  next  to  come,  to  answer  upon 
the  contents  (hereof )." 

Many  other  illustrations  of  similar  reasons  for 
seeking  the  aid  of  equity  might  be  given.  In  1388, 
John  S.  Kernyng  and  Adam,  who  describe  themselves 
as  constables  of  the  Hundred  of  Clavering,  say  that 
they  dare  not  perform  their  office  unless  the  defendants 
find  sureties  for  their  place.  Near  the  beginning  of  the 
fifteenth  century,  it  is  charged  in  a  bill  against  one 
Thomas  Archer,  "that  he  is  so  great  a  maintainer, 
extortioner  and  conducer  of  inquests  in  his  country 
that  no  one  dare  contradict"  him.  In  1397,  one 
Sibil,  described  as  the  "widow  of  Robert  Darcy, 
knight,"  gives  as  the  reason  for  her  inability  to  sue 
at  common  law,  the  fact  that  no  attorney  dared  to 
take  her  case  on  account  of  fear  of  the  malice  of  the 
defendant. 

In  many  early  cases  the  plaintiff  simply  says  that 
he  dares  not  sue  at  common  law,  while  in  a  number  of 
other  cases  the  poverty  of  the  plaintiff  is  the  sole 
reason  urged  why  the  Chancellor  should  interfere. 

Another  case,  involving  violence,  which  might 
also  come  under  the  head  of  unfair  competition,  is  the 
following  bill  dated  in  1397: 

"To  his  most  honored  and  most  gracious  Lord,  the 
Chancellor  of  England,  showeth  your  poor  servant, 
William  Lonesdale, 

"Of  Scarborough,  merchant,  that  whereas  the 
said  William  hath  divers  tunes  by  sea  and  by  land, 
brought  divers  merchandise,  to-wit,  herring,  kippered 
and  salted,  and  other  fish  and  victuals  from  the  port 


EQUITY  JURISPRUDENCE.  177 

of  Scarborough  in  the  County  of  York  to  the  town  of 
Yaxley  in  the  County  of  Huntington,  to  sell  them  there 
as  well  he  might,  to  the  great  relief  of  all  the  country 
round  the  said  town  of  Yaxley;  and  because  he  sold 
his  merchandise  at  a  less  price  than  other  merchants 
of  the  said  town  of  Yaxley  did  there,  Richard  Suffyn, 
Thomas  Clement  and  William  Childe  of  Yarwell,  and 
many  other  evil-doers,  of  their  covin,  lay  in  wait  with 
force  and  arms  to  kill  the  said  William  Lonesdale,  and 
they  assaulted  him,  beat  him  and  ill-treated  him,  and 
left  him  there  for  dead,  so  that  he  despaired  of  his 
life;  May  it  please  your  most  gracious  Lordship  to 
send  for  the  said  parties  by  writs  of  our  Lord  the  King, 
to  answer  in  his  Chancery,  as  well  for  the  said  mis- 
deeds as  for  other  thing  which  then  shall  be  alleged 
against  them:  For  God  and  in  way  of  charity." 

Mingled  with  cases  of  the  character  already 
referred  to  were  others  bearing  a  resemblance  to  the 
cases  which  now  furnish  the  work  for  the  courts  of 
equity.  As  we  trace  down  the  various  ancient  bills, 
from  the  reign  of  Edeard  III.  to  the  tune  of  the  Stuart 
dynasty,  we  find  each  familiar  class  of  jurisdiction,  one 
after  the  other,  beginning  to  come  before  the  court,  until 
by  the  reign  of  James  I.  the  scope  of  equity  jurispru- 
dence is  practically  co-extensive  with  it,  as  it  exists 
to-day. 

Bills  for  the  cancellation  and  delivery  of  instru- 
ments existed  as  early  as  the  reign  of  Edward  III.,  as 
is  seen  by  the  following  bill,  which  furnishes  an  in- 
teresting commentary  upon  the  scientific  ideas  of  the 
period. 

"To  the  Chancellor  of  our  Lord  the  King : 

"Prayeth  Thomas  de  York,  that  whereas  he  know- 
eth  how  to  work  by  science  of  alchemy  and  to  make 

Vol.  I.— 12. 


178  LEGAL   HISTORY. 

silver  implate,  and  hath  done  so  in  the  presence  of 
worthy  folk  of  London,  and  the  silver  hath  been  as- 
sayed by  the  goldsmiths  of  the  same  city,  and  found 
good,  there  came  one  Thomas  Crop  of  London,  grocer, 
and  made  himself  known  to  the  said  Thomas  de  York, 
so  much  so  that  he  got  him  to  carry  his  instruments 
and  his  elixir  to  his  (Crop's)  house,  and  got  him  to 
work  in  his  house  before  him;  and  when  the  said 
Thomas  Crop  perceived  the  science  thereof,  wishing 
to  have  the  said  Thomas  de  York  in  danger,  he,  by 
cullusion  between  himself  and  other  of  the  city,  im- 
prisoned the  said  Thomas  de  York  in  the  house  of  the 
said  Thomas  Crop  in  London,  and  there  made  him 
sign  a  bond  in  100  marks  to  the  said  Thomas  Crop,  as 
on  an  account  rendered,  and  afterwards  another  bond 
for  the  like  sum  and  in  the  same  form;  and  thus,  by 
virtue  of  these  bonds,  the  said  Thomas  Crop  hath 
caused  the  said  Thomas  de  York  to  be  arrested  and 
imprisoned  in  Newgate,  and  detaineth  his  elixir  and 
his  other  instruments  and  other  goods  and  chattels, 
to  the  value  of  £40;  whereof  the  said  Thomas  de 
York  prayeth  for  God's  sake  that  he  (the  Chancellor) 
will  be  pleased  to  order  his  deliverance  and  to  make 
the  said  Thomas  Crop  come  with  the  elixir  and  the 
instruments  aforesaid,  so  that  he  (the  plaintiff)  may 
work  and  prove  his  science  before  them  (your  Council) 
or  any  others  whom  it  may  please  the  King  to  assign, 
and  that  the  false  bonds  may  be  cancelled." 

Bills  of  this  character  became  quite  common 
during  the  reign  of  Richard  II. 

Fraud  early  appears  as  a  ground  for  equitable 
relief.  It  might  be  added,  in  a  defense  of  a  too  readily 
slandered  profession,  that  in  but  one  of  the  early 
equitable  bills  alleging  fraud,  which  have  come  down 


EQUITY  JURISPRUDENCE.  179 

to  us,  is  the  alleged  wrongdoer,  a  lawyer,  while  in  at 
least  half  of  the  cases  the  deceit  is  attributed  to  some 
member  of  the  clerical  body.  A  specimen  of  bills 
of  this  character  is  here  given : 

"To  my  most  honored  Lord,  the  Chancellor  of  England : 
"Showeth  your  clerk,  John  de  Brampton,  rector 
of  the  church  of  S.  Dunstan  in  the  west  in  London, 
that  whereas  he  delivered  to  John  Seymour,  attorney, 
on  the  first  day  of  June  last,  a  release,  on  condition 
that  he  should  have  delivered  to  the  said  John  de 
Brampton,  that  same  day,  20  marks  sterling  or  two 
bonds,  the  one  being  a  bond  for  £40  made  to  Gunnora 
Horn  of  London,  and  the  other  for  £12  made  to  the  said 
John  Seymour  in  the  name  of  the  said  John  Horn, 
together  with  a  letter  of  attorney  sealed  with  the  seal 
of  the  said  John  Seymour,  and  the  will  of  the  said 
Gunnora  Horn,  which  (documents)  the  said  John 
Saymour  had  in  his  keeping  on  that  same  day,  as  it 
was  agreed  that  same  day  between  the  said  John,  son 
of  Nichols  Horn  of  London,  to  whom  the  duty  of  the 
said  bonds  ought  to  and  does  belong,  and  the  said 
John  Seymour,  then  his  attorney,  the  which  agree- 
ment was  made  between  them  in  the  great  Hall  at 
Westminster;  and  John  Seymour,  maliciously  and 
falsely  scheming  to  deceive  the  said  John  de  Brampton, 
showed  him  20  marks  in  gold  in  his  hand,  and  de- 
manded from  him  the  said  release,  which  John  de 
Brampton  gave  him,  hoping  to  have  received  the  20 
marks,  as  was  agreed,  and  not  suspecting  any  fraud 
or  ill  device.  But  John  Seymour,  after  he  had  re- 
ceived the  release  from  John  de  Brampton,  would  not 
deliver  to  him  the  20  marks  nor  the  bond  for  £40,  nor 
the  letter  of  attorney,  nor  the  will  aforesaid,  but  doth 
retain  them  to  the  destruction  of  the  estate  of  the  said 


180  LEGAL  HISTORY. 

John  de  Brampton  and  contrary  to  the  said  agree- 
ment, and  notwithstanding  that  he  hath  been  required 
by  the  said  John  de  Brampton  to  make  restitution  of 
the  release,  or  of  the  bond,  the  letter  of  attorney  and 
the  will  above  said.  May  it  please  your  noble  Lord- 
ship to  cause  the  said  John  Seymour  to  come  before 
you  in  the  Chancery  on  a  certain  day  to  be  fixed  by 
you  to  say  why  he  should  not  deliver  the  said  release, 
or  the  bond,  letter  of  attorney  and  will  abovesaid  to 
the  said  John  de  Brampton,  or  to  say  why  he  should 
not  be  condemned  by  you  to  the  said  John  de  Bramp- 
ton in  the  said  £52  contained  in  the  said  two  bonds, 
together  with  the  costs  incurred  and  to  be  incurred 
by  the  said  John  de  Brampton  in  the  matter,  since  the 
agreement  was  made  within  the  jurisdiction  of  the 
Chancery." 

SECTION  77.    CONTEST  WITH  THE  COMMON  LAW 

COURTS. 

The  growth  of  the  extraordinary  or  equitable 
jurisdiction  of  the  Chancery  Courts  was  always  viewed 
with  jealousy  by  the  common  law  judges,  and  at  times 
openly  resisted.  No  other  claim  made  by  the  equity 
judges  was  so  extremely  distasteful  to  the  common 
law  judges  as  their  attempts  to  interfere  by  injunctions 
in  proceedings  before  other  courts.  In  22  Edward 
IV,  Chief  Justice  Hussey  advised  the  attorney  for  a 
plaintiff  who  had  been  enjoined  from  trying  to  collect 
his  judgment,  to  proceed  with  execution  regardless  of 
such  injunction,  promising  to  release  him  on  habeas 
corpus  if  he  were  committed  for  contempt  of  court. 
Upon  this  occasion  the  Chancery  judges  were  com- 
pelled to  give  way. 

During  the  reign  of  Henry  VIII,  a  barrister  was 


EQUITY   JURISPRUDENCE.  181 

indicted  in  the  Court  of  the  King's  Bench  under  the 
statute  of  praemunire  for  seeking  such  an  injunction  in 
the  Chancery  Court.  The  final  result  of  the  action 
is  not  recorded. 

•The  contest  on  this  point  reached  its  climax  in 
the  reign  of  James  I.  The  question,  after  having  been 
argued  with  great  ability  by  Chief  Justice  Cole  and 
Chancellor  Ellesmere,  was  finally  referred  to  the  King, 
by  whom  it  was  referred  to  a  commission  with  Lord 
Bacon  at  its  head.  The  decision  of  this  commission 
was  in  favor  of  the  contentions  of  the  Court  of  Equity. 

An  illustration  of  the  interference  of  equity  courts 
in  cases  before  Common  Law  Courts  is  found  in  the 
case  of  Clayborne  vs.  Royln,  B.  1574,  Cal.  342. 

The  Mayor  of  Lynn  had  punished  the  defendant 
for  incontinence,  on  which  she  brought  an  action 
against  him  for  false  imprisonment;  the  mayor  filed  a 
bill  for  an  injunction.  To  what  head  of  jurisdiction 
this  application  was  addressed  does  not  appear.  The 
matter  was  referred  to  three  masters.  They  reported 
that,  although  it  appeared  not  to  them  that  there  was 
sufficient  proof  made  before  the  plaintiff,  late  Mayor 
of  Lynn,  whereby  he  should  justly  proceed  to  the 
punishment  of  the  defendant  in  such  sort  as  he  did, 
yet  they  found  too  much  likelihood  of  evil  behavior  and 
suspicion  of  incontinency  testified  by  some  witnesses 
against  the  defendant,  that  they  thought  it  very  con- 
venient that  the  actions  should  be  stayed,  which  the 
defendant  had  commenced  at  the  common  law,  and 
thereupon  this  court  to  take  such  further  order  between 
the  parties  as  to  the  same  shall  be  thought  meet;  and 
an  injunction  was  awarded  accordingly. 

This  authority  to  issue  injunctions  of  this  char- 
acter was  about  the  last  new  power  obtained  by  the 


182  LEGAL  HISTORY. 

Courts  of  Equity.  What  may  be  called  the  formu- 
lative  period  of  equity  came  to  an  end  about  the 
beginning  of  the  seventeenth  century,  and  new  actions 
could  no  longer  be  created  by  the  authority  and  will 
of  the  judges  themselves. 

At  the  time  of  the  establishment  of  the  English 
colonies  in  America,  the  equity  courts  had  reached 
their  full  development  and  existed  as  a  distinct  system 
of  courts,  independent  of,  but  auxiliary  to  the  common 
law  courts,  and  as  such  were  carried  over  in  America. 

SECTION  78.    USES. 

Ownership  in  general  involves  two  elements,  the 
holding  of  the  legal  title  and  the  right  to  the  beneficial 
use.  When  these  are  separated,  the  legal  title  being 
granted  to  one  party  and  the  beneficial  use  to  another, 
there  is  created  a  use  or  trust. 

Uses  were  first  introduced  into  England  as  a 
result  of  the  adoption  of  the  Statute  of  Mortmain. 
This  statute,  passed  in  1269,  provided  that  no  more 
land  should  be  granted  to  any  religious  corporation. 
To  evade  the  effect  of  the  statute  the  ecclesiastical 
judges  and  lawyers  invented  the  use,  copied  after  the 
fidei  commissei  of  the  Roman  law,  so  as  to  permit 
lands  being  granted  to  a  third  party  to  hold  for  the 
use  of  the  church.  This  particular  use  of  the  use  was 
stopped  in  1392  by  the  passage  of  the  Act  of  13 
Richard  II.,  prohibiting  land  being  granted  to  anyone 
to  hold  for  the  use  of  a  religious  corporation.  The 
use,  however,  had  been  by  this  time  widely  adopted 
for  many  different  purposes,  both  legitimate  and 
illegitimate.  It  was  used  to  avoid  some  of  the  incidents 
and  hardships  of  the  feudal  tenures,  to  transfer  (the 
beneficial  interest  in)  land  without  the  necessity  of 


EQUITY   JURISPRUDENCE.  183 

livery  of  seisin;  to  defraud  creditors;  and  to  avoid 
forfeitures.  A  great  impetus  was  given  to  its  use  for 
the  last  purpose  by  the  War  of  the  Roses,  with  its 
frequent  changes  of  fortune  and  their  accompanying 
executions  and  forfeitures.  After  the  close  of  this 
war  a  great  deal  of  opposition  to  uses  developed  in 
Parliament,  and  during  the  reigns  of  Henry  VII.  and 
Henry  VIII.,  a  series  of  acts  was  directed  against 
them,  the  most  important  of  which  acts  were  as  follows : 
3  Henry  VII.,  C.  4,  forbidding  deeds  of  gift  on  trust 
made  to  defraud  creditors;  4  Henry  VII.,  C.  17,  de- 
claring uses  liable  to  wardship  and  reliefs;  19  Henry 
VII,  C.  15,  declaring  them  liable  to  execution;  26 
Henry  VIII.,  C.  13,  declaring  them  liable  to  forfeiture. 
These  series  of  acts  culminated  in  the  famous  Statute 
of  Uses,  27  Henry  VIII,  which  will  be  discussed  in 
the  following  section. 

The  introduction  of  uses  into  English  law  dates 
from  about  the  same  period  of  legal  history  as  the 
creation  of  courts  with  equitable  jurisdiction.  As 
the  rights  of  the  cestui  que  use  could  at  all  tunes  only 
be  protected  by  the  chancery  courts,  we  find  uses 
occupying  an  important  place  in  equitable  jurispru- 
dence almost  from  the  origin  of  the  system. 

The  following  is  an  illustrative  early  bill  involving 
the  doctrine  of  uses: 

"To  the  most  reverend  Father  in  God  and  his  most 
gracious  Lord,  the  Bishop  of  Exeter,  Chancellor  of 
England. 

"Humbly  beseecheth  William  Holt,  Esquire,  that 
whereas  Stephen  Holt,  his  father,  who  died  lately, 
before  Michaelmas  last,  in  his  lifetime  purchased 
certain  lands,  rents  and  tenements  in  the  County  of 
Sussex,  and  thereof  enfeoffed  Master  John  Debenham, 


184  LEGAL  HISTORY. 

Richard  Monek,  John  Holt,  William  Goldsmith,  clerks; 
Andrew  Blake,  John  Bedeford,  and  others,  to  the 
intent  (that  they  should)  enfeoff  him  or  his  heirs  when 
they  should  be  required  (to  do  so) ;  after  whose  death, 
the  said  William,  as  son  and  heir  of  the  said  Stephen, 
his  father,  required  them  to  enfeoff  him  according  to 
the  intent  of  the  said  feoffment;  and  they  refused, 
and  will  not  do  it,  but  keep  the  said  lands,  rents,  and 
tenements  in  their  hands,  by  great  extortion,  and  to 
the  great  damage  of  the  said  suppliant.  May  it  please 
your  most  gracious  Lordship  to  cause  them  to  come 
before  you  by  writ  of  our  Lord  the  King,  under  a 
certain  pain,  and  to  examine  them  of  the  truth,  and  to 
do  what  right  and  good  faith  demand,  so  that  no  such 
extortion  nor  deceit  be  suffered;  for  God  and  in  way 
of  charity." 

SECTION  79.  THE  STATUTE  OF  USES. 
The  Statute  of  Uses  presents  the  anomalous 
picture  of  a  statute  which  absolutely  failed  to  accom- 
plish the  purpose  for  which  it  was  adopted,  but  which, 
nevertheless,  became  one  of  the  landmarks  in  English 
legal  history.  The  purpose  of  the  statute  was  to  en- 
tirely abolish  passive  uses  by  reuniting  the  legal  title 
and  the  beneficial  use  in  the  hands  of  the  party  who 
possessed  the  beneficial  interest.  This  result  was 
thwarted  by  the  ingenuity  of  the  lawyers  of  the  day, 
and  the  final  effect  of  the  statute  was  to  establish  uses 
(or  trusts  as  they  now  began  to  be  called)  on  a  more 
secure  and  solid  foundation  than  ever.  How  this 
result  was  brought  about  will  be  explained  in  detail 
under  the  heading  of  Equity  Jurisprudence.  As  a 
secondary  result  the  statute  revolutionized  the  system 
of  conveyancing.  This  result  will  be  treated  of  under 
the  heading  of  Real  Property. 


CHAPTER  IX. 

OUTLINE  OF  THE  CONSTITUTIONAL,  POLIT- 
ICAL AND  LEGAL  HISTORY  OF  THE  THIR- 
TEEN COLONIES,  AND  OF  THE  UNITED 
STATES  PRIOR  TO  THE  ASSEMB- 
LING OF  THE  FEDERAL  CON- 
STITUTIONAL CONVENTION. 

SECTION   80.    ENGLISH   COLONIZATION   IN   AMERICA. 

The  history  of  the  English  colonies  in  America 
was,  to  a  great  degree,  moulded  by  the  character  of  the 
century  in  which  these  colonies  were  principally  settled. 
The  failure  of  Raleigh's  attempts  at  colonization  in 
the  sixteenth  century  was,  in  the  end  for  the  benefit 
of  the  new  Anglo-Saxon  nation  which  was  to  arise  in 
the  New  World.  The  character  of  the  age  of  its  settle- 
ment must  be  reflected  permanently  in  the  character 
of  every  colony.  The  sixteenth  century  was  primarily 
a  century  of  commercial  enterprise  and  of  adventure. 
We  find  the  spirit  of  knight  errantry  of  the  Crusades 
existing  side  by  side  with  the  commercialism  of  the 
present  day.  The  voyages,  explorations  and  at- 
tempted colonization  of  this  period  were  all  tinged 
with  the  one  or  both  of  these  influences.  Any  colonies 
which  had  owed  their  origin  to  the  enterprises  of  such 
times  must,  of  necessity,  have  been  of  the  exploitation 
class.  They  could  hardly  have  failed  to  have  become 
colonies  whose  inhabitants  would  have  looked  upon 
America  as  merely  a  field  for  gain  or  adventure,  and 
whose  love  and  allegiance  would  have  remained  true 

185 


186  LEGAL  HISTORY. 

to  their  old  home  across  the  Atlantic.  Time  would 
have  lessened  such  conditions,  but  could  hardly  have 
eradicated  them  by  the  close  of  the  eighteenth  century. 

The  seventeenth  century  was  a  century  of  far 
different  character  in  English  history;  it  was  a  century 
of  intense  religious  and  political  awakening;  a  century 
which  witnessed  the  greatest  of  all  Anglo-Saxon  con- 
tests for  civil  rights  and  political  liberty.  The  char- 
acter of  the  English  colonization  during  this  century 
was,  in  the  main,  consistent  with  the  character  of  the 
period  itself.  The  colonists  were,  in  general,  men  in 
whom  the  prevalent  spirit  of  the  age,  the  intense  love 
of  political  liberty,  and  the  resolute  resistance  to 
tyranny  was  strongly  implanted.  The  century  which 
gave  to  England  the  Petition  of  Right  and  the  Bill 
of  Rights,  which  sent  one  king  to  the  block  and  an- 
other into  exile,  could  give  birth  to  colonies,  which 
could  be  trusted  in  the  future  to  resist  any  attempt  to 
deprive  them  of  those  liberties  which  the  great  charters 
of  the  seventeenth  century  had  declared  to  be  the 
heritage  of  the  Anglo-Saxon  race. 

The  title  of  England  and  of  her  colonists  to  the 
land  within  the  limits  of  the  thirteen  colonies  was 
partially  based  upon  conquest  from  other  European 
countries,  but  mainly  upon  the  right  of  occupation  of 
territory  theretofore  only  inhabited  by  uncivilized 
people.  The  Supreme  Court  in  the  case  of  Johnson 
vs.  Mclntosh,1  considered  in  detail  the  history  of  the 
colonizing  efforts  of  the  various  European  countries, 
and  the  authority  upon  which  title  to  land  in  the  New 
World  rested.  "On  the  discovery  of  this  immense 
continent,  the  great  nations  of  Europe  were  eager  to 
appropriate  to  themselves  so  much  of  it  as  they  could 

1  8  Wheaton,  543. 


LEGAL  HISTORY   OF  THE   COLONIES.  187 

respectively  acquire.  Its  vast  extent  offered  an  ample 
field  to  the  ambition  and  enterprise  of  all;  and  the 
character  and  religion  of  its  inhabitants  afforded  an 
apology  for  considering  them  as  a  people  over  whom 
the  superior  genius  of  Europe  might  claim  an  ascend- 
ancy. The  potentates  of  the  old  world  found  no 
difficulty  in  convincing  themselves  that  they  made 
ample  compensation  to  the  inhabitants  of  the  new, 
by  bestowing  on  them  civilization  and  Christianity 
in  exchange  for  unlimited  independence.  But,  as 
they  were  all  in  pursuit  of  nearly  the  same  object,  it 
was  necessary,  in  order  to  avoid  conflicting  settle- 
ments, and  consequent  war  with  each  other,  to  es- 
tablish a  principle  which  all  should  acknowledge  as 
the  law  by  which  the  right  of  acquisition,  which  they 
all  asserted,  should  be  regulated  as  between  themselves. 
This  principle  was,  that  discovery  gave  title  to  the 
government  by  whose  subjects,  or  by  whose  authority 
it  was  made,  against  all  other  European  governments, 
which  title  might  be  consummated  by  possession. 

"The  exclusion  of  all  other  Europeans  necessarily 
gave  to  the  nation  making  the  discovery  the  sole  right 
of  acquiring  soil  from  the  natives  and  establishing 
settlements  upon  it.  It  was  a  right  with  which  no 
Europeans  could  interfere.  It  was  a  right  which  all 
asserted  for  themselves,  and  to  the  assertion  of  which, 
by  others,  all  assented. 

'Those  relations  which  were  to  exist  between  the 
discoverer  and  the  natives  were  to  be  regulated  by 
themselves.  The  rights  thus  acquired  being  exclusive, 
no  other  power  could  interpose  between  them. 

"In  the  establishment  of  these  relations,  the 
rights  of  the  original  inhabitants  were,  in  no  instance, 
entirely  disregarded;  but  were  necessarily,  to  a  con- 


188  LEGAL  HISTORY. 

siderable  extent,  impaired.  They  were  admitted  to 
be  the  rightful  occupants  of  the  soil,  with  a  legal  as 
well  as  a  just  claim  to  retain  possession  of  it,  and  to 
use  it  according  to  their  own  discretion;  but  their  rights 
to  complete  sovereignty  as  independent  nations  were 
necessarily  diminished,  and  their  power  to  dispose  of 
the  soil  at  their  own  will,  to  whomsoever  they  pleased, 
was  denied  by  the  original  fundamental  principle  that 
discovery  gave  exclusive  title  to  those  who  made  it. 

"While  the  different  nations  of  Europe  respected 
the  right  of  the  natives,  as  occupants,  they  asserted 
the  ultimate  dominion  to  be  in  themselves;  and 
claimed  and  exercised  as  a  consequence  of  this  ultimate 
dominion,  a  power  to  grant  the  soil,  while  yet  in  pos- 
session of  the  natives.  These  grants  have  been  un- 
derstood by  all  to  convey  a  title  to  the  grantees,  sub- 
ject only  to  the  Indian  right  of  occupancy. 

"The  history  of  America,  from  its  discovery  to 
the  present  day,  proves,  we  think,  the  universal 
recognition  of  these  principles. 

"Spain  did  not  rest  her  title  solely  on  the  grant 
of  the  Pope.  Her  discussions  respecting  boundary, 
with  France,  with  Great  Britain,  and  with  the  United 
States,  all  show  that  she  placed  it  on  the  rights  given 
by  discovery.  Portugal  sustained  her  claim  to  the 
Brazils  by  the  same  title. 

"France,  also,  founded  her  title  to  the  vast 
territories  she  claimed  in  America  on  discovery. 
However  conciliatory  her  conduct  to  the  natives  may 
have  been,  she  still  asserted  her  right  of  dominion  over 
a  great  extent  of  country  not  actually  settled  by 
Frenchmen,  and  her  exclusive  right  to  acquire  and 
dispose  of  the  soil  which  remained  in  the  occupation 
of  Indians.  Her  monarch  claimed  all  Canada  and 


LEGAL  HISTORY   OF  THE   COLONIES.  189 

Acadia,  as  colonies  of  France,  at  a  time  when  the  French 
population  was  very  inconsiderable  and  the  Indians 
occupied  almost  the  whole  country.  She  also  claimed 
Louisiana,  comprehending  the  immense  territories 
watered  by  the  Mississippi,  and  the  rivers  which  empty 
into  it,  by  the  title  of  discovery.  The  letters  patent 
granted  to  the  Sieur  Demonts,  in  1603,  constitute  him 
Lieutenant-General,  and  the  representative  of  the 
King  of  Acadia,  which  is  described  as  stretching  from 
the  fortieth  to  the  forty-sixth  degree  of  north  latitude; 
with  authority  to  extend  the  power  of  the  French  over 
that  country  and  its  inhabitants;  to  give  laws  to  the 
people;  to  treat  with  the  natives,  and  enforce  the 
observation  of  treaties,  and  to  parcel  out  and  give 
title  to  lands,  according  to  his  own  judgment. 

"The  States  of  Holland  also  made  acquisition  in 
America,  and  sustained  their  right  on  the  common 
principle  adopted  by  all  Europe.  They  allege,  as  we 
are  told  by  Smith,  in  his  History  of  New  York,  that 
Henry  Hudson,  who  sailed,  as  they  say,  under  the 
orders  of  their  East  India  Company,  discovered  the 
country  from  the  Delaware  to  the  Hudson,  up  which 
he  sailed,  to  the  forty-third  degree  of  north  latitude; 
and  this  country  they  claimed  under  the  title  acquired 
by  this  voyage.  Their  first  object  was  commercial, 
as  appears  by  a  grant  made  to  a  company  of  merchants 
in  1614;  but  in  1621,  the  States-General  made,  as  we 
are  told  by  Mr.  Smith,  a  grant  of  the  country  to  the 
West  India  Company,  by  the  name  of  New  Nether- 
lands. 

"The  claim  of  the  Dutch  was  always  contested  by 
the  English,  not  because  they  questioned  the  title 
given  by  discovery ;  but  because  they  insisted  on  being 
themselves  the  rightful  claimants  under  that  title. 
Their  pretensions  were  finally  decided  by  the  sword. 


190  LEGAL  HISTORY. 

"No  one  of  the  powers  of  Europe  gave  its  full 
assent  to  this  principle  more  unequivocally  than  Eng- 
land. The  documents  upon  this  subject  are  ample 
and  complete.  So  early  as  the  year  1496,  her  monarch 
granted  a  commission  to  the  Cabots,  to  discover  coun- 
tries then  unknown  to  Christian  people,  and  to  take 
possession  of  them  in  the  name  of  the  King  of  England. 
Two  years  afterwards,  Cabot  proceeded  on  this  voyage, 
and  discovered  the  continent  of  North  America,  along 
which  he  sailed  as  far  south  as  Virginia.  To  this 
discovery  the  English  trace  their  title. 

"In  this  first  effort  made  by  the  English  govern- 
ment to  acquire  territory  on  this  continent,  we  per- 
ceive a  complete  recognition  of  the  principle  which  has 
been  mentioned.  The  right  of  discovery  given  by  this 
commission  is  confined  to  countries  'then  unknown 
to  all  Christian  people';  and  of  these  countries  Cabot 
was  empowered  to  take  possession  in  the  name  of  the 
King  of  England,  thus  asserting  a  right  to  take  posses- 
sion, notwithstanding  the  occupancy  of  the  natives, 
who  were  heathens,  and  at  the  same  time  admitting 
the  prior  title  of  any  Christian  people  who  may  have 
made  a  previous  discovery. 

"The  same  principle  continued  to  be  recognized. 
The  charter  granted  to  Sir  Humphrey  Gilbert,  in  1578, 
authorizes  him  to  discover  and  take  possession  of  such 
remote,  heathen  and  barbarous  lands  as  were  not  actu- 
ally possessed  by  any  Christian  prince  or  people. 
This  charter  was  afterwards  renewed  to  Sir  Walter 
Raleigh,  in  nearly  the  same  terms. 

"By  the  charter  of  1606,  under  which  the  first 
permanent  English  settlement  on  this  continent  was 
made,  James  I  granted  to  Sir  Thomas  Gates  and  others, 
those  territories  in  America  lying  on  the  sea  coast, 


LEGAL  HISTORY  OF  THE   COLONIES.  191 

betwesn  the  thirty-fourth  and  forty-fifth  degrees  of 
north  latitude,  and  which  either  belonged  to  that 
monarch,  or  were  not  then  possessed  by  any  other 
Christian  prince  or  people.  The  grantees  were  divided 
into  two  companies,  at  their  own  request.  The  first, 
or  southern  colony,  was  directed  to  settle  between  the 
thirty-fourth  and  forty-first  degrees  of  north  latitude; 
and  the  second,  or  northern  colony,  between  the 
thirty-eighth  and  forty-fifth  degrees. 

"In  1609,  after  some  expensive  and  not  very 
successful  attempts  at  settlement  had  been  made,  a 
new  and  more  enlarged  charter  was  given  by  the  crown 
to  the  first  colony  in  which  the  King  granted  to  the 
Treasurer  and  Company  of  Adventurers  of  the  City 
of  London  for  the  first  colony  in  Virginia/  in  absolute 
property,  the  lands  extending  along  the  sea  coast  400 
miles,  and  into  the  land  throughout  from  sea  to  sea. 
This  charter,  which  is  a  part  of  the  special  verdict  in 
this  cause,  was  annulled,  so  far  as  respected  the  rights 
of  the  company,  by  the  judgment  of  the  Court  of 
King's  Bench  on  a  writ  of  quo  warranto;  but  the 
whole  effect  allowed  to  this  judgment  was  to  revest 
in  the  crown  the  powers  of  government,  and  the  title 
to  the  land  within  its  limits. 

"  At  the  solicitation  of  those  who  held  under  the 
grant  to  the  second  or  northern  colony,  a  new  and  more 
enlarged  charter  was  granted  to  the  Duke  of  Lenox 
and  others,  in  1620,  who  were  denominated  the  Ply- 
mouth Company,  conveying  to  them  in  absolute 
property  all  the  lands  between  fortieth  and  forty- 
eighth  degrees  of  north  latitude. 

"  Under  this  patent,  New  England  has  been  in  a 
great  measure  settled.  The  company  conveyed  to 
Henry  Rosewell  and  others,  in  1627,  that  territory 


192  LEGAL  HISTORY. 

which  is  now  Massachusetts;  and  in  1628,  a  charter 
of  incorporation,  comprehending  the  powers  of  govern- 
ment, was  granted  to  the  purchasers. 

"  Great  parts  of  New  England  were  granted  by  this 
company,  which,  at  length,  divided  their  remaining 
lands  among  themselves;  and  in  1635,  surrendered 
their  charter  to  the  crown.  A  patent  was  granted  to 
Gorges  for  Maine,  which  was  allotted  to  him  in  the 
division  of  property. 

"  All  the  grants  made  by  the  Plymouth  Company, 
so  far  as  we  can  learn,  have  been  respected.  In  pur- 
suance of  the  same  principle,  the  King,  in  1664,  granted 
to  the  Duke  of  York  the  country  of  New  England  as 
far  south  as  the  Delaware  Bay.  His  Royal  Highness 
transferred  New  Jersey  to  Lord  Berkeley  and  Sir  George 
Carteret. 

"  In  1663,  the  crown  granted  to  Lord  Clarendon 
and  others,  the  country  lying  between  the  thirty-sixth 
degree  of  north  latitude  and  the  river  St.  Mathos;  and, 
in  1666,  the  proprietors  obtained  from  the  crown  a 
new  charter  granting  to  them  that  province  in  the 
King's  dominions  in  North  America  which  lies  from 
thirty-six  degrees  thirty  minutes  north  latitude  to  the 
twenty-ninth  degree,  and  from  the  Atlantic  Ocean  to 
the  South  Sea. 

"  Thus  has  our  whole  country  been  granted  by  the 
crown  while  in  the  occupation  of  the  Indians.  These 
grants  purport  to  convey  the  soil  as  well  as  the  right 
of  dominion  to  the  grantees.  In  those  governments 
which  were  denominated  royal,  where  the  right  to  the 
soil  was  not  vested  in  individuals,  but  remained  in  the 
crown,  or  was  vested  in  the  colonial  government,  the 
King  claimed  and  exercised  the  right  of  granting  lands, 
and  of  dismembering  the  government  at  his  will. 
The  grants  made  out  of  the  two  original  colonies,  after 


LEGAL   HISTORY   OF  THE   COLONIES.  193 

the  resumption  of  their  charters  by  the  crown,  are 
examples  of  this.  The  governments  of  New  England, 
New  Jersey,  New  York,  Pennsylvania,  Maryland,  and 
a  part  of  Carolina,  were  thus  created.  In  all  of  them, 
the  soil,  at  the  tune  the  grants  were  made,  was  occupied 
by  the  Indians.  Yet  almost  every  title  within  those 
governments  is  dependent  on  these  grants.  In  some 
instances,  the  soil  was  conveyed  by  the  crown  unaccom- 
panied by  the  powers  of  government,  as  in  the  case  of 
the  northern  neck  of  Virginia.  It  has  never  been 
objected  to  this,  or  to  any  other  similar  grant,  that  the 
title  as  well  as  possession  was  in  the  Indians  when  it 
was  made,  and  that  it  passed  nothing  on  that  account." 

SECTION  81.  THE  THIRTEEN  COLONIES. 
Twelve  of  the  colonies  had  come  into  political 
existence  before  the  close  of  the  seventeenth  century; 
the  thirteenth  colony  was  added  near  the  beginning 
of  the  ensuing  century.  It  was  the  political  life  in  the 
individual  colonies,  rather  than  the  larger  political  life 
of  England,  which  was  to  prepare  the  American  colo- 
nists for  the  great  work  of  constructive  government 
presented  to  them  at  the  close  of  the  eighteenth  cen- 
tury. As  has  been  stated  in  the  previous  chapter,  the 
evolution  and  changes  in  English  constitutional  law, 
after  the  passage  of  the  Bill  of  Rights,  had  little  influence 
upon  colonial  institution  or  thought.  United  political 
action  by  the  thirteen  colonies  was  only  to  come 
into  existence  at  the  very  threshold  of  the  Revolu- 
tionary War.  It  is  therefore  necessary  in  order  to 
prepare  for  the  study  of  the  great  American  Constitu- 
tional Convention,  and  for  the  Constitution  which  this 
convention  prepared,  to  supplement  the  study  of  the 
Constitutional,  legal  and  political  history  of  England 
with  that  of  the  constitutional,  legal  and  political 

Vol.  I.— 13. 


194  LEGAL  HISTORY. 

history  of  the  various  English  colonies  in  America. 
The  form  of  government  and  the  characteristics  of 
political  life  in  the  various  colonies,  differed  greatly 
from  each  other.  It  is  partly  to  this  difference  of  poli- 
tical training  that  there  is  to  be  ascribed  the  far  diver- 
gent views  of  government  with  which  the  representa- 
tives of  the  various  States  met  at  Philadelphia  in  1787. 
In  order,  therefore,  to  understand  clearly  the  existing 
political  conditions  in  America  in  the  pre-constitutional 
period,  it  is  necessary  to  consider  briefly  the  case  of 
each  of  the  thirteen  colonies.  Before  doing  so,  how- 
ever, a  few  general  observations  may  be  made. 

The  colonies,  as  to  their  general  system  of  govern- 
ment, fall  into  three  clearly  defined  classes,  the  charter 
colonies,  the  proprietary  colonies,  and  the  royal  prov- 
inces. To  the  first  class  belonged  Rhode  Island, 
Connecticut,  and  Massachusetts;  to  the  second,  Penn- 
sylvania, Delaware,  and  Maryland;  to  the  third,  New 
Hampshire,  New  York,  New  Jersey,  Virginia,  North 
Carolina,  South  Carolina,  and  Georgia. 

The  charter  colonies  were  governed  under  charters 
granted  by  the  King  directly  to  the  government,  and 
were  by  far  the  freest  of  the  American  colonies.  The 
charters  of  two  of  these  charter  colonies,  Rhode  Island 
and  Connecticut,  were  very  liberal;  so  liberal  in  fact 
that  in  each  case  they  were  continued  in  use  as  the 
constitutions  of  the  State,  for  many  years  after  the 
American  Revolution.  These  two  colonies  were  almost 
independent  Republics,  owing  hardly  more  than  a 
nominal  allegiance  to  England.  The  charter  of  Massa- 
chusetts was  much  less  liberal;  in  reality  the  govern- 
ment of  this  Commonwealth  bore  a  much  stronger 
resemblance  to  that  of  the  royal  provinces  than  to 
that  of  the  neighboring  charter  colonies. 

The  proprietary  colonies  were  illustrations  of  that 


LEGAL   HISTORY   OF  THE   COLONIES.  195 

ancient  confusion  between  the  right  of  sovereignty 
and  rights  of  property.  They  bore  in  many  respects 
a  strange  resemblance  to  those  old  feudal  fiefs  where 
the  grantee  of  the  King  held  not  only  a  right  of  property 
in  the  land,  but  also  the  power  of  government  over  the 
inhabitants  in  such  territory.  The  degree  of  self- 
government  allowed  to  the  citizens  of  these  proprietary 
colonies  was  about  equal  to  that  enjoyed  by  those  of 
the  royal  provinces.  The  powers  which  the  King 
possessed  in  this  latter  class  of  colonies  were  in  the 
main  granted,  in  the  case  of  the  proprietary  colonies, 
to  the  proprietors.  The  royal  provinces  were  the 
most  directly  under  the  control  of  the  English  govern- 
ments. The  inhabitants  of  these  colonies  were  granted 
the  privileges  of  choosing  the  most  numerous  branch 
of  the  legislative  body  while  the  appointment  of  all 
other  officials  was  either  directly  or  indirectly  in  the 
hands  of  the  crown. 

The  political  history  of  the  majority  of  the  colonies 
was  at  times  stormy  to  a  degree.  The  political 
controversies  in  these  colonies  were  generally  contests 
between  the  legislative  and  executive  branches  of  the 
colonial  government.  As  the  legislative  bodies  were 
the  representatives  of  the  people,  and  the  executive, 
in  all  the  colonies  except  Rhode  Island  and  Connecticut, 
the  appointees  of  the  King,  the  legislative  branch  of 
the  government  came  to  be  regarded  by  the  people  as 
the  defenders  of  their  liberties  and  the  executive  as  the 
instruments  of  tyranny. 

SECTION  82.    THE  COLONIAL  GOVERNMENT  OF  VIR- 
GINIA. 

The  colony  of  Virginia  was  the  first  permanent 
English  settlement  in  North  America.  It  was  settled 
under  the  grant  made  by  James  I,  in  1606,  to  the  Lon- 


196  LEGAL   HISTORY. 

don  Company,  a  company  of  '  'noblemen,  gentlemen, 
and  merchants/'  of  that  part  of  North  America  lying 
between  the  thirty-fourth  and  thirty-eighth  degrees 
of  north  latitude.  A  later  charter  provided  for  the 
government  of  this  territory,  naming  a  number  of  cor- 
porators, who  were  made  a  public  corporation,  and 
given  power  to  take  out  such  persons  as  colonists  as 
they  might  choose,  to  admit  or  expel  members,  and  to 
have  the  general  power  of  governing  the  colony  as 
to  all  local  matters.  The  increasing  dissatisfaction  of 
the  colonists  with  their  entire  lack  of  any  share  in  the 
government  finally  induced  Governor  Yeadley,  in  1819, 
to  call  a  general  assembly,  composed  of  representatives 
from  the  various  plantations  in  the  colony,  which  was 
the  first  representative  legislative  body  which  ever  sat 
in  America.  A  further  step  in  the  direction  of  free 
government  was  taken  in  1621,  when  a  regular  govern- 
ment was  created  by  ordinance,  composed  of  a  Gover- 
nor, Council,  and  a  House  of  Burgesses  elected  by  the 
people.  To  this  General  Assembly  was  granted  free 
power  as  to  all  matters  of  local  nature  concerning  the 
general  welfare  of  the  colony;  with  the  power  to  enact 
such  laws  as  appeared  necessary  or  requisite.  In 
1623-24,  the  House  of  Burgesses  assented  by  law  that 
the  Governor  "shall  not  lay  any  taxes  or  imposts  on 
the  colonists,  their  lands  or  commodities,  otherway 
than  by  the  authority  of  the  General  Assembly,  to  be 
levied  and  employed  as  the  said  Assembly  shall  ap- 
point. This  law  was  re-enacted  in  1631,  in  1632  and 
(in  a  different  form)  in  1642.  To  this  claim  the  people 
of  Virginia  always  adhered,  although  it  at  times  met 
with  opposition  from  King  and  Governor.  Virginia, 
which  almost  alone  of  the  colonies  had  been  largely 
settled  by  the  upper  classes  of  England,  and  which 


LEGAL  HISTORY  OF  THE   COLONIES.  197 

was  Episcopal  in  religion,  espoused  the  royal  side  in 
the  great  English  Civil  War  of  the  seventeenth  century. 
In  spite  of  this,  however,  they  were  given  a  greater 
degree  of  self-government  under  the  Commonwealth 
than  they  had  ever  enjoyed  under  the  King,  being 
allowed,  during  this  period,  to  elect  their  governor. 
Under  the  restoration  of  Charles  II,  the  government 
of  Virginia  reverted  to  its  former  condition  and  Vir- 
ginia remained  a  royal  province  down  to  the  tune  of 
the  Revolution,  except  for  a  short  experience  as  a 
proprietary  colony  toward  the  end  of  the  reign  of 
Charles  II.  Virginia  was  throughout  the  colonial 
period  the  largest  and  richest  of  all  the  colonies,  and 
also  one  of  the  most  tenacious  of  her  rights  and  liber- 
ties. The  laws  of  Virginia,  which  provided,  among 
other  things,  for  primogeniture  and  an  established 
state  church,  bore  a  much  stronger  resemblance  to  those 
of  England  than  did  those  of  the  New  England  states. 
The  town  or  township  organization  was  unknown, 
the  country  being  the  political  sub-division  possessed 
of  all  the  powers  of  local  government. 

SECTION  83.    MASSACHUSETTS. 

The  second  of  the  thirteen  colonies  in  order  of 
settlement  was  Massachusetts.  Virginia  and  Massa- 
chusetts were  always  the  two  leading  English  colonies 
in  America.  Although  the  two  are  found  together  in 
the  eighteenth  century,  leading  the  way  for  independ- 
ence, they  nevertheless  present  many  striking  contrasts 
in  their  history,  laws,  religion,  and  government.  The 
territory  of  Massachusetts  was  included  in  the  grant 
of  territory  given  to  the  Plymouth  Company.  Several 
different  settlements,  under  distinct  governments,  were 
made  in  this  territory;  two  of  them,  the  Plymouth 


198  LEGAL  HISTORY. 

Colony  and  the  Massachusetts  Bay  colony  being  finally 
united  into  the  colony  of  Massachusetts.  The  earliest 
of  these  settlements  was  that  made  at  Plymouth  in 
1620,  by  a  small  band  of  Puritan  exiles  from  England. 
Before  landing  these  emigrants  drew  up  and  signed  the 
following  agreement  as  to  the  new  government  to  be 
created.  "In  the  name  of  God,  amen.  We,  whose 
names  are  underwritten,  the  loyal  subjects  of  our 
dread  Sovereign  Lord,  King  James,  etc.,  having  under- 
taken for  the  glory  of  God  and  advancement  of  the 
Christian  faith,  and  honor  of  our  King  and  country,  a 
voyage  to  plant  the  first  colony  in  the  northern  part 
of  Virginia,  do,  by  these  presents,  solemnly  and  mu- 
tually, in  the  presence  of  God,  and  of  one  another, 
covenant  and  combine  ourselves  together  into  a  civil 
body-politic,  for  our  better  ordering  and  preservation 
and  furtherance  of  the  ends  aforesaid;  and  by  virtue 
hereof,  to  enact,  constitute,  and  frame  such  just  and 
equal  laws  and  ordinances,  acts,  constitutions  and 
officers,  from  time  to  time,  as  shall  be  thought  most 
meet  and  convenient  for  the  general  good  of  the 
colony;  unto  which  we  promise  all  due  submission  and 
obedience." 

The  Plymouth  colonists,  in  1629,  obtained  from 
the  Plymouth  Company  in  England  a  patent  author- 
izing them  to  make  laws  for  their  own  government. 
The  legislation  of  this  colony  is  a  curious  intermixture 
of  Mosaic  law  and  the  common  law.  In  1636  the  col- 
ony declared  against  all  taxation  but  "by  the  consent 
of  the  body  of  freemen  or  their  representatives  legally 
assembled." 

In  March,  1629,  a  charter  was  given  by  Charles  I 
to  the  Massachusetts  Bay  Company,  which  made  the 
patentees  and  their  associates  a  corporation.  The 


LEGAL  HISTORY  OF  THE   COLONIES.  199 

Charter  provided  that  the  affairs  of  the  company 
should  be  managed  by  a  governor,  deputy  governor 
and  eighteen  assistants  or  magistrates,  the  latter 
of  whom  were  to  hold  monthly  courts.  A  general 
Court  of  Assembly  of  all  the  freemen  and  stockholders 
was  to  be  held  monthly  for  purposes  of  legislation. 
No  royal  veto  power  over  the  acts  of  this  body  was 
reserved.  The  colonists  were  to  have  the  rights  of 
Englishmen  and  nothing  was  said  about  religion. 
The  colony  was  at  first  governed  from  England  but 
the  charter  was  very  soon  removed  to  Massachusetts. 
For  a  few  years  both  the  Plymouth  and  Massa- 
chusetts Bay  colonies  were  practically  self  governing. 
Finally,  however,  Charles  I  began  to  interfere  with  the 
government  of  the  colonies,  and  demanded  the  sur- 
render of  their  charters.  The  result  of  the  Civil  War 
saved  the  liberties  of  the  colonies  for  a  tune,  but 
after  the  restoration  of  the  Stuarts  the  colonies  were 
subject  to  much  interference  and  persecution,  which 
culminated  in  1684  when  the  King  obtained  a  judg- 
ment in  the  high  Court  of  Chancery  in  England  against 
the  Governor  and  Company  of  Massachusetts,  declaring 
the  charter  of  the  Company  forfeited.  The  period 
of  the  rule  of  Sir  Edmund  Andros  as  Governor  from 
1686-1689  was  the  most  tyrannical  epoch  in  all  New 
England's  history.  After  the  expulsion  of  James  II,  the 
old  charters  were  for  a  time  re-established,  but  in  1692 
were  finally  superseded  by  a  new  charter  granted  to 
Massachusetts.  By  the  terms  of  this  charter  the  colony 
of  Plymouth,  the  provinces  of  Maine  and  Nova  Scotia 
as  far  north  as  the  St.  Lawrence  River,  and  all  the 
country  between  them  were  added  to  the  old  provinces 
of  Massachusetts,  as  were  also  the  Elizabeth  Islands  and 
the  islands  of  Nantucket  and  Martha's  Vineyard.  The 


200  LEGAL  HISTORY. 

governor,  lieutenant-governor  and  colonial  secretary 
were  appointed  by  the  crown.  The  charter  gave  the 
governor  the  power  to  convene  and  dissolve  the  General 
Court,  and  a  veto  power  over  of  all  its  acts.  The  coun- 
cillors first  appointed  by  the  crown  were  afterwards  to 
be  annually  elected  by  the  House  of  Representatives  and 
the  existing  council;  but  of  the  twenty-eight  thus  chosen 
the  governor  might  reject  thirteen.  The  advice  and 
consent  of  the  council  were  necessary  to  all  appointments 
and  official  acts.  Under  this  charter  the  theocracy 
which  had  ruled  Massachusetts  with  vigor  lost  nearly 
all  its  power.  Toleration  was  expressly  secured  to  all 
religious  sects,  excepting  the  Roman  Catholic.  The 
right  of  suffrage,  limited  by  the  old  government  to 
church  members  and  a  few  persons  admitted  as  freemen 
on  a  minister's  certificate,  was  now  bestowed  on  all 
inhabitants  possessing  a  freehold  of  the  annual  value 
of  $6 . 66,  or  personal  property  to  the  amount  of  $133.33. 
After  the  receipt  of  the  new  charter  the  General  Court 
passed  an  act  which  was  a  declaration  of  the  rights  of 
the  colony.  Among  the  general  privileges  which  it 
asserted,  it  declared  that  "No  aid,  tax,  tollage,  assess- 
ment, custom,  loan,  benevolence,  or  imposition  what- 
soever, shall  be  laid,  assessed,  imposed  or  levied  on  any 
of  their  Majesties'  subjects,  on  their  estates,  on  any 
picture  whatsoever,  but  by  the  act  and  consent  of 
the  governor  and  people  assembled  in  the  General 
Council." 

Massachusetts  was  always  the  leader  of  the  Puritan 
colonies.  Her  political  and  religious  tendencies  were 
those  of  the  English  Independents  of  the  seventeenth 
century.  The  powers  of  local  government  were  vested 
in  the  town  meetings  of  the  various  towns,  which  were 
perhaps  the  most  democratic  political  assemblies  ever  in 


LEGAL   HISTORY   OF   THE   COLONIES.  201 

existence.  The  counties  were  of  minor  importance,  being 
little  more  than  judicial  districts.  One  political  prin- 
ciple firmly  established  in  this  colony  was  that  of  the 
necessity  for  short  terms  for  public  officials  and  frequent 
elections. 

SECTION  84.    CONNECTICUT. 

Connecticut,  which  ranked  next  to  Massachusetts 
among  the  New  England  and  Puritan  colonies,  was  the 
product  of  the  union  of  two  smaller  colonies,  the  New 
Haven  colony  and  the  original  Connecticut  colony. 
The  former  colony  was  settled  under  a  grant  given  by 
Charles  I  to  Viscount  Say  and  Seal,  Robert,  Lord 
Brook,  and  others.  The  first  settlement  in  the  latter 
colony  was  made  at  Hartford  in  1635.  In  1639  a  con- 
stitution for  the  government  of  the  colony  was  adopted 
by  a  general  vote  of  the  citizens.  This  constitution 
served  as  a  basis  for  the  charter  afterwards  obtained 
from  the  King.  Connecticut  sided  with  the  Parliament 
during  the  civil  wars  and  enjoyed  practically  self- 
government  during  the  period  of  the  Commonwealth. 
Upon  the  restoration,  however,  the  colony  had  fears 
regarding  their  liberties  and  therefore  the  General 
Assembly  made  a  formal  acknowledgment  of  their 
allegiance  which  they  sent  to  the  King,  together  with 
a  petition  for  a  charter,  by  Governor  Winthrop. 
Although  at  first  coldly  received,  Winthrop  finally 
succeeded  in  obtaining  a  charter  from  the  King,  which 
annexed  to  Connecticut  the  territories  of  the  colony  of 
New  Haven  and  part  of  Rhode  Island.  It  is  probable 
that  the  King  was  induced  to  take  this  step  less  by  any 
kindly  feelings  towards  Connecticut,  than  by  a  desire  to 
raise  up  a  strong  rival  to  Massachusetts  in  New  England, 
and  to  punish  New  Haven,  which  had  given  shelter  to 


202  LEGAL  HISTORY. 

three  of  the  judges  who  had  tried  and  condemned  his 
father. 

The  operation  of  the  charter  was  temporarily 
suspended  during  the  reign  of  James  II  but  was  put  in 
operation  once  more  upon  the  accession  of  William  and 
Mary.  The  provisions  of  this  charter  were  so  liberal 
that  the  charter  was  continued  in  use  as  a  State  con- 
stitution for  many  years  after  the  Independence  of  the 
United  States  had  been  secured.  The  provision  in  the 
charter  annexing  a  portion  of  Rhode  Island  led  to  a 
boundary  dispute  with  that  colony  which  lasted 
sixty  years,  while  a  provision  in  the  charter  that  its 
territory  should  extend  westward  to  the  Pacific  nearly 
involved  Pennsylvania  and  Connecticut  in  a  civil  war 
near  the  close  of  the  eighteenth  century. 

Connecticut  very  closely  resembled  Massachusetts 
in  the  character  of  her  people,  her  political  and  religious 
principles  and  her  form  of  local  government. 

SECTION  85.    RHODE  ISLAND. 

Rhode  Island  was  originally  settled  by  political 
and  religious  exiles  from  the  neighboring  colonies. 
The  earliest  government  was  one  created  by  the  settlers 
themselves,  each  settler  being  required  to  sign  an 
agreement  to  give  active  or  passive  obedience  to  all 
ordinances  that  should  be  adopted  by  a  majority  vote 
of  the  inhabitants.  In  1644,  Roger  Williams  secured 
a  charter  from  England  which  united  the  various 
scattered  settlements  into  one  province  under  the  title 
of  Rhode  Island  and  Providence  Plantations.  This 
charter  was  confirmed  by  Cromwell,  and  a  new  charter 
was  granted  by  Charles  II  in  1663.  Rhode  Island 
shared  with  Connecticut  the  honor  and  privilege  of 
having  the  most  popular  form  of  government  among 


LEGAL   HISTORY  OF  THE   COLONIES.  203 

the  colonies.  The  people  elected  all  their  officials  and 
were  practically  a  small  republic,  with  hardly  more 
than  a  nominal  allegiance  to  England.  The  charter 
granted  by  Charles  II  continued  to  be  used  as  the 
State  Constitution  nearly  to  the  middle  of  the  nine- 
teenth century.  The  great  freedom  as  to  political  and 
religious  ideas  allowed  in  Rhode  Island  attracted  the 
discontented  and  oppressed  from  all  the  neighboring 
colonies.  Rhode  Island  did  much  to  set  a  good  ex- 
ample of  toleration  to  her  sister  colonies,  but  in  the 
seventeenth  century  such  a  position  as  that  taken  by 
Rhode  Island  was  so  far  in  advance  of  the  age  as  to 
render  this  colony  an  object  of  distrust  to  her  neigh- 
bors. For  this  reason  Rhode  Island  was  excluded 
from  the  New  England  Confederacy.  (1643-1686.) 
Although  she  had  no  serious  grievances,  of  her  own, 
Rhode  Island  was  one  of  the  first  of  the  colonies  in  the 
contest  against  England,  but  the  prevalent  spirit  of 
unrest  and  agitation  abroad  in  the  colony,  made  her 
the  most  unmanageable  of  all  the  colonies  in  the  at- 
tempt to  establish  a  true  national  government. 

SECTION  86.     NEW  HAMPSHIRE. 

New  Hampshire  was  the  last  settled  and  the  weak- 
est of  the  original  New  England  colonies.  For  a  long 
time  New  Hampshire  was  merely  a  county  (Norfolk) 
of  Massachusetts.  In  1680  a  separation  took  place 
and  New  Hampshire  became  a  royal  province,  with 
the  ordinary  form  of  government  for  this  class  of 
colonies.  The  character  of  the  settlers  of  this  colony, 
their  political  and  religious  ideas,  and  their  system  of 
private  laws  and  of  local  self-government,  closely  re- 
sembled the  more  southerly  Puritan  colonies  of  Massa- 
chusetts and  Connecticut. 


204  LEGAL  HISTORY. 

SECTION  87.    NEW  YORK. 

New  York  differed  greatly  from  the  other  original 
colonies,  in  that  her  original  colonies  and  settlers  were 
not  English  but  Dutch.  Although  Holland  was  at  the 
time  a  certain  kind  of  Republic,  the  colonial  govern- 
ment and  laws  of  her  American  colony  were  very 
illiberal,  being,  in  the  main,  based  upon  the  old  prin- 
ciples and  methods  of  the  feudal  system.  In  1664, 
New  Amsterdam  (as  the  colony  had  been  previously 
called)  passed  into  the  control  of  the  English.  For  a 
while  New  York  was  a  proprietary  colony  under  the 
rule  of  James,  Duke  of  York,  (afterwards  King  James 
II,)  but  was  soon  made  a  royal  province.  The  Dutch 
element  in  the  population  of  the  colony  was  always 
large,  with  the  result  that  this  colony  was  often  out 
of  sympathy  with  her  sister  colonies.  The  political 
history  of  the  colony  was  less  stormy  than  that  of  most 
of  her  neighbors.  The  Tory  sentiment  was  perhaps 
stronger  there  than  in  any  other  colony,  and  New 
York  played  a  very  important  part  in  the  Revolution- 
ary War,  while  her  narrow  and  selfish  spirit,  in  the 
period  which  followed  the  peace  with  England,  did 
much  to  embarrass  the  central  government  and  to 
drive  the  American  Union  more  than  once  close  to  the 
rocks  of  anarchy  or  civil  war.  The  colonial  laws  and 
government  of  New  York  possessed  no  features  of 
particular  interest  or  importance,  closely  resembling 
those  of  the  other  royal  provinces. 

SECTION  88.    NEW  JERSEY. 

The  possession  of  New  Jersey  was  originally  con- 
tested for  by  the  English,  Dutch  and  Swedes.  For 
a  while  New  Jersey  was  annexed  to  New  Amsterdam, 
and  later  passed  with  this  colony  to  England,  in  1664. 


LEGAL   HISTORY   OF  THE   COLONIES.  205 

The  government  of  New  Jersey  under  English  rule 
underwent  many  rapid  changes.  The  territory  was  part 
of  the  grant  to  James,  Duke  of  York,  and  was  by  him 
granted  to  two  of  his  favorites,  Lord  Berkeley  and  Sir 
George  Carteret.  These  proprietors  established  a  lib- 
eral form  of  government  and  offered  liberal  terms  to 
purchasers  of  land  and  many  settlers  were  soon  at- 
tracted to  the  province.  After  a  few  years  a  great  deal 
of  trouble  began  to  be  experienced  in  connection  with 
land  titles  and  quit-rents,  which  resulted  in  continued 
agitation,  and  on  one  occasion  in  open  rebellion.  In 
1676  Lord  Berkeley  sold  his  undivided  one-half  interest 
in  the  colony  to  William  Penn  and  a  number  of  other 
Quakers.  New  Jersey  was  shortly  afterward  divided 
into  two  colonies,  the  Quakers  taking  West  Jersey  and 
Sir  George  Carteret  receiving  East  Jersey.  In  1682, 
East  Jersey  was  likewise  purchased  by  the  Quakers. 
During  a  portion  of  the  reign  of  James  II,  New  Jersey 
was  united  with  all  the  colonies  lying  north  of  her, 
under  the  rule  of  Governor  Andros,  but  upon  the  acces- 
sion of  William  and  Mary  was  restored  to  her  Quaker 
Proprietors.  In  1702,  after  the  Quakers  had  secured 
possession  of  Pennsylvania  and  Delaware,  New  Jersey 
was  surrendered  to  the  King.  From  1702  to  1739, 
New  Jersey  was  annexed  to  New  York,  but  in  the  latter 
year  was  made  a  separate  royal  province  with  the  form 
of  government  usual  in  such  colonies.  The  population 
of  New  Jersey  was  of  very  diverse  character.  The 
Tory  sentiment  was  very  strong  in  this  colony  during 
the  revolution  period. 

SECTION  89.    PENNSYLVANIA  AND  DELAWARE. 

The  colonial  histories  of  Pennsylvania  and  Dela- 
ware  were   throughout   so    closely   connected   as   to 


206  LEGAL   HISTORY. 

necessitate  their  treatment  in  connection  with  each 
other.  Delaware  was  the  first  of  these  two  colonies 
to  be  the  seat  of  white  settlements.  This  colony,  like 
New  Jersey,  was  first  settled  by  the  Swedes,  who  were 
conquered  by  the  Dutch,  and  with  the  conquest  of  the 
latter  in  1664,  Delaware  passed  under  English  rule. 
The  territory  included  within  the  area  of  the  present 
State  of  Delaware  was  for  a  while  claimed  by  Mary- 
land ;  that  colony,  however,  failed  in  its  efforts  to  secure 
possession  of  this  region,  which  remained  under  the 
rule  of  the  Duke  of  York  until  1682,  when  it  was 
granted  to  William  Penn,  who  desired  an  outlet  to  the 
sea  for  his  larger  colony  of  Pennsylvania. 

William  Penn  had  been  one  of  the  Quaker  pur- 
chasers of  New  Jersey,  and  in  1681  secured  a  grant 
from  Charles  I,  of  a  tract  of  45,000  square  miles,  to  be 
held  in  fealty  on  an  annual  payment  of  two  beaver 
skins.  The  consideration  for  the  grant  was  the  can- 
cellation of  a  debt  of  about  £16,000  which  had  been 
due  from  the  crown  to  the  father  of  William  Penn. 

Both  Pennsylvania  and  Delaware  were  throughout 
the  whole  colonial  period  charter  colonies.  The  early 
government  established  by  Penn  was  extremely  just 
and  liberal,  and  emigration  to  these  colonies  was 
rapid.  Pennsylvania  has  the  honor  of  being  the  first 
Christian  community  in  the  world  which  allowed  com- 
plete religious  freedom. 

Delaware  was  first  governed  as  a  part  of  Pennsyl- 
vania, and  went  by  the  name  of  'The  Territories"  or 
"Three  Lower  Counties  on  the  Delaware."  Later 
Pennsylvania  and  Delaware  were  given  separate  legis- 
latures, but  still  continued  under  the  rule  of  a  single 
governor.  The  joint  governor  was  appointed  by  the 
Proprietors,  but  the  members  of  the  legislature  were 


LEGAL   HISTORY   OF  THE   COLONIES.  207 

elected  by  the  people.  The  governors  appointed  by 
the  successors  of  William  Penn  were  so  unpopular 
that  after  the  Declaration  of  Independence  the  State 
Constitutions  adopted  in  these  two  states  provided 
for  an  executive  council  instead  of  a  single  executive 
head.  Pennsylvania  had  only  a  single  branch  in  her 
legislative  body  until  1790.  A  peculiar  feature  of  the 
government  of  Pennsylvania  was  her  council  of  censors, 
resembling  somewhat  in  their  duties  the  old  Roman 
officials  bearing  that  title,  who  assembled  once  in  seven 
years  to  report  as  to  whether  the  State  has  been  well 
governed  during  the  period  since  the  last  meeting  of 
this  council.  It  was  this  peculiar  institution  which 
prevented  the  threatened  civil  war  between  Pennsyl- 
vania and  Connecticut  in  1784. 

SECTION  90.     MARYLAND. 

Maryland  was  settled  under  a  grant  to  Cecil, 
Lord  Baltimore.  The  colony  was  primarily  intended 
as  a  place  of  refuge  for  Roman  Catholics,  but  religious 
freedom  was  secured  to  every  Christian  denomination 
except  the  Unitarians.  A  fuller  degree  of  self-govern- 
ment also  was  granted  by  this  first  charter  than  was 
given  in  any  other  colony.  An  insurrection  on  the 
part  of  the  Puritans,  who  had  settled  in  the  colony, 
temporarily  deprived  Lord  Baltimore  of  his  power, 
which  was,  however,  restored  to  him  by  Cromwell. 
Civil  war  between  Catholics  and  Puritans  disturbed 
the  peace  of  the  colony  until  1701,  when  Maryland 
was  made  a  royal  province.  In  1716  the  proprietary 
rights  of  the  descendents  of  Lord  Baltimore  were  re- 
stored to  them  and  Maryland  remained  a  proprietary 
colony  during  the  remainder  of  the  colonial  period. 
Maryland  was  among  the  most  conservative  of  the 
colonies  on  the  question  of  independence. 


208  LEGAL  HISTORY. 

SECTION   91.    NORTH   AND   SOUTH   CAROLINA. 

Although  there  had  been  a  number  of  small  and 
ineffectual  attempts  at  colonization  prior  to  the  tune, 
nothing  of  importance  was  done  towards  the  settle- 
ment of  the  Carolinas  until  1663,  when  Charles  II 
granted  the  territory  to  eight  of  his  courtiers.  The 
grantees  were  made  absolute  lords  and  proprietors  of 
the  country,  the  King  reserving  to  himself  and  his 
successors  sovereign  dominion.  They  were  empowered 
to  enact  and  publish  laws,  with  the  advice  and  consent 
of  the  freemen,  to  erect  courts  and  judicature,  and 
appoint  civil  judges,  magistrates  and  other  officers; 
to  erect  forts,  castles,  cities  and  towns;  to  make  war, 
and  in  cases  of  necessity  to  exercise  martial  law;  to 
construct  harbors,  make  ports,  and  enjoy  custodies 
and  subsidies  on  goods  loaded  and  unloaded,  by  con- 
sent of  the  freemen.  The  charter  granted  freedom  in 
religious  worship.  The  philosopher,  John  Locke,  and 
Ashley  Cooper,  Earl  of  Shaftsbury,  in  1669,  prepared 
a  scheme  of  government  for  the  colony,  based  upon 
feudal  principles.  The  proposed  system  was  un- 
suited  for  existing  conditions,  being,  in  fact,  almost 
grotesque  in  many  of  its  provisions,  and  was  so  un- 
popular with  the  settlers  that  no  real  attempt  was  ever 
made  to  put  it  into  operation.  The  settlers  of  Caro- 
lina were  of  very  diverse  origins,  including  colonists 
sent  directly  from  England  by  the  Proprietors,  emi- 
grants from  Virginia  and  the  West  Indies,  Puritans 
from  New  England,  French  Huguenots,  Jacobins,  and 
Scotch  Presbyterians.  Clashes  among  the  various 
elements  were  frequent  and  made  Carolina  one  of  the 
most  turbulent  of  the  colonies.  After  being  several 
tunes  divided  and  reunited,  Carolina  in  1729  was  per- 
manently divided  into  North  Carolina  and  South 


LEGAL   HISTORY   OF  THE   COLONIES.  209 

Carolina,  each  of  which  was  made  a  royal  province. 
There  was  a  strong  Tory  element  in  the  Caroh'nas,  but 
the  Whigs  were  in  the  majority  and  took  a  vigorous 
part  in  the  Revolutionary  War. 

SECTION  92.    GEORGIA. 

Georgia,  the  last  of  the  thirteen  original  colonies, 
was  settled  in  1732,  under  a  grant  made  to  James 
Oglethorpe.  The  purpose  of  the  colony  was  to  furnish 
a  refuge  to  debtors,  prisoners,  and  paupers.  Georgia 
became  a  royal  province  in  1752.  Her  first  legislative 
assembly  was  created  in  1755.  Georgia  played  a  very 
minor  part  both  in  colonial  history  and  in  the  Revolu- 
tionary War  on  account  of  her  position  and  of  her 
small  population. 

SECTION  93.    THE  REVOLUTIONARY  WAR. 

The  course  of  events  leading  to  the  Revolutionary 
War  began  almost  at  the  outset  of  the  reign  of  George 
III,  the  character  and  aims  of  which  ruler  were  briefly 
referred  to  at  the  close  of  Chapter  VI.  To  the 
attempt  of  this  king  to  rule  in  England,  instead  of 
merely  to  reign,  as  his  two  immediate  predecessors 
had  been  content  to  do,  can  be  traced  the  breaking  out 
of  the  great  Revolution.  The  attitude  of  George  III 
towards  the  colonies  was  only  one  aspect  of  his  larger 
policy  towards  the  English  Empire  as  a  whole.  The 
spirit  of  independence  which  he  encountered  in  the 
colonies  was  the  same  spirit  of  independence  which  he 
sought  to  curb  at  home.  The  contest  with  the  colonies 
was  apparently  deliberately  sought  by  the  reactionary 
king  as  a  preliminary  test  of  strength  before  the  opening 
of  the  home  contest.  The  American  minute  men 
were  fighting  not  only  their  own  battle,  but  also  that 
of  their  brethren  across  the  water;  their  defeat  would 

Vol.  I.— 14. 


210  LEGAL  HISTORY. 

have  transferred  the  battle  to  England.  The  Revolu- 
tionary War,  in  its  broadest  significance,  was  not  one  so 
much  between  America  and  England,  as  one  in  which 
the  radical  forces  in  both  countries  were  arrayed  against 
the  conservative  elements  in  each.  William  Pitt 
openly  rejoiced  that  America  had  resisted,  while  Fox,  in 
his  speeches  in  the  House  of  Commons  habitually  re- 
ferred to  Washington's  forces  as  "our  army,"  and 
even  adopted  the  famous  blue  and  buff  of  the  con- 
tinental army  as  the  colors  of  the  Whig  party.  With 
the  mass  of  the  English  people  the  war  was  so  unpopu- 
lar that  the  troops  for  the  war  mainly  had  to  be  hired 
in  Germany.  On  the  other  hand,  probably  at  least 
one-third  of  the  whole  population  of  the  colonies  were 
Tories  in  their  sympathies,  and  this  third  included  the 
majority  (the  great  majority  outside  of  Massachusetts) 
of  the  wealthy  and  educated  classes. 

If  the  English  House  of  Commons  had  fairly 
represented  the  English  people,  the  war  would  probably 
never  have  occurred;  but  it  did  not  fairly  represent 
them.  In  the  words  of  the  younger  William  Pitt: 
"The  House  is  not  the  representative  of  the  people  of 
Great  Britain.  It  is  the  representative  of  nominal 
boroughs,  of  ruined  and  exterminated  towns,  of  noble 
families,  of  wealthy  individuals,  of  foreign  potentates." 
In  a  population  of  8,000,000  of  English  people,  only 
160,000  had  the  right  of  suffrage. 

The  details  of  the  struggle  are  immaterial.  The 
contest  was  originally  one  over  taxation,  but  the  re- 
sistance was  not  on  account  of  money  but  of  principle. 

The  American  colonists  were  demanding  the  ap- 
plication in  the  New  World  of  that  old  Anglo-Saxon 
principle,  proclaimed  by  the  Magna  Charta  and  the 
Bill  of  Rights,  that  taxation  without  representation 
was  illegal. 


LEGAL   HISTORY   OF  THE   COLONIES.  211 

The  pressure  from  England  began  to  bring  the 
colonies  into  closer  relations  with  each  other  and  to 
lay  the  foundations  for  an  united  country.  The 
earlier  attempts  at  the  consolidation  of  the  colonies 
had  proved  unsuccessful.  Those  instituted  by  the 
King,  such  as  the  union  of  the  northern  colonies  under 
Andros,  had  met  with  resistance  from  the  people; 
while  such  meetings  as  the  Albany  Congress  had  been 
viewed  with  suspicion  by  the  English  government. 

The  passage  of  the  Stamp  Act  led  to  the  meeting 
of  the  "Stamp  Act  Congress,"  in  October,  1765. 
Nine  colonies  were  represented,  and  advanced  ground 
was  taken  in  support  of  the  rights  of  the  colonies. 
Laying  aside  arguments  based  on  chartered  privileges, 
the  Congress  took  their  stand  on  the  broad  doctrines 
of  inalienable  rights  and  privileges,  asserting  their 
right  to  trials  by  jury  in  all  cases,  and  to  freedom  from 
all  taxation  not  voted  by  a  body  wherein  they  were 
represented. 

Nine  years  later  the  first  Continental  Congress 
met  at  Philadelphia.  All  the  colonies,  aroused  at  the 
calamity  overhanging  one  of  their  number,  were 
represented.  The  English  government,  enraged  at 
the  Boston  Tea  Party,  had  passed  through  Parliament 
a  series  of  acts  designed  to  crush  the  most  daring  of 
the  colonies  and  to  intimidate  the  others.  The  charter 
of  Massachusetts  was  annulled,  her  town  meetings 
destroyed,  and  the  appointment  of  all  officials  was 
vested  in  the  crown.  Boston,  as  the  center  of  the 
disturbance,  was  particularly  punished;  she  was  no 
longer  to  be  either  the  Capitol  of  the  colony  or  a  port 
of  entry,  and  provision  was  made  for  quartering 
British  troops  upon  her  citizens.  The  trial  of  any 
British  soldier  or  official  accused  of  murder  was  to  be 
transferred  to  England. 


212  LEGAL  HISTORY. 

This  first  Continental  Congress  was  a  mere  pro- 
visional government.  There  was  no  thought,  except 
in  the  minds  of  advanced  thinkers  like  Samuel  Adams, 
of  political  separation  from  England.  A  redress  of 
grievances  was  demanded,  not  a  severance  of  existing 
political  ties.  The  second  Continental  Congress  met 
the  following  year  under  more  stormy  auspices;  by 
this  time  the  war  had  begun,  the  Battle  of  Lexington 
having  already  been  fought.  The  day  for  compro- 
mises had  passed,  and  the  contest  could  only  end  by 
the  unconditional  surrender  of  the  one  side  or  the 
other.  It  was,  however,  not  until  after  the  evacua- 
tion of  Boston  in  the  ensuing  year,  that  the  question 
of  independence  was  taken  up.  Within  a  few  days 
after  the  passage  of  the  Declaration  of  Independence,2 
a  committee  was  appointed  to  draft  a  framework  of 
government  for  the  United  States. 

The  Articles  of  Confederation3  were  finally  passed 
by  Congress  on  October  15,  1777,  and  submitted  to  the 
states.  Eleven  of  the  states  ratified  the  Articles  of 
Confederation  before  the  close  of  the  year  1778.  Dela- 
ware delayed  until  1779,  and  Maryland  until  1781. 
The  delay  on  the  part  of  Maryland  was  for  the  purpose 
of  compelling  the  States  of  Massachusetts,  Connecticut, 
New  York  and  Virginia  to  surrender  their  claims  to 
the  northwest  territory.  Although  not  fully  ratified 
until  1781,  the  Articles  of  Confederation  served  as  a 
basis  for  the  form  of  government  after  the  year  1777. 

SECTION  94.     THE  ARTICLES  OF  CONFEDERATION. 

The  Articles  of  Confederation  contained  within 
themselves  the  germs  of  many  of  those  evils  which 
were  to  agitate  the  country  for  the  next  decade.  The 

1  See  Appendex  F.  *  See  Appendex  G. 


LEGAL  HISTORY  OF  THE   COLONIES.  213 

nature  of  this  system  of  government  can  be  shown  by 
the  second  article,  which  provided  that:  "Each  State 
shall  retain  its  sovereignty,  freedom,  and  independence, 
and  every  power,  jurisdiction,  and  right,  that  is  not  by 
this  confederation  expressly  delegated  to  the  United 
States  in  Congress  assembled."  The  next  article  pro- 
vided that, '  The  States  severally  enter  into  a  firm  league 
of  friendship  with  each  other  for  their  common  defense, 
the  security  of  their  liberties,  and  their  general  and 
mutual  welfare."  The  United  States  was  thus  in  its 
inception,  not  a  country  but  a  league  of  sovereign 
states.  The  very  word  adopted  as  the  name  of  their 
legislative  body  was  one  which  had  heretofore  only  been 
applied  to  the  assemblies  of  diplomatic  representatives. 
If  the  new  Congress  of  the  United  States  was  in  some 
respects  something  more  than  a  congress  of  ambassa- 
dors, it  was,  nevertheless,  in  its  powers,  among  the 
weakest  of  legislative  bodies.  The  power  of  taxation 
was  entirely  lacking  to  it.  Congress  could  indeed 
estimate  the  sum  necessary  for  the  expense  of  the 
government,  and  make  requisitions  on  the  states  for 
their  respective  quotas,  but  there  its  authority  ceased. 
There  were  no  means  by  which  the  collections  of  such 
quotas  could  be  enforced  and  the  states  soon  became 
hopelessly  in  arrears.  The  domestic  relations  of  the 
governments  of  the  United  States,  under  the  Articles 
of  Confederation,  were  with  the  States.  The  people 
had  no  part  in  the  general  government,  and  could  not 
be  acted  upon  by  it,  except  indirectly.  The  resem- 
blance between  the  Congress  and  a  diplomatic  body 
is  further  shown  by  the  provisions  allowing  each  State 
to  determine  the  number  of  its  representatives,  between 
the  limits  of  two  and  seven,  and  to  recall  them  at 
pleasure.  Each  State  paid  its  own  members.  The 


214  LEGAL  HISTORY. 

number  of  representatives  from  a  State  did  not  affect 
its  voting  power,  as  each  State  had  one  vote.  The 
votes  of  nine  states  were  required  in  order  to  pass  a 
motion  to  engage  in  war,  grant  letters  of  marque  and 
reprisal,  enter  into  treaties  or  alliances,  coin  money, 
or  regulate  the  value  thereof,  ascertain  the  sums  and 
expenses  necessary  for  the  defense  and  welfare  of  the 
United  States,  or  any  of  them,  emit  bills,  borrow 
money  on  the  credit  of  the  United  States,  appropriate 
money,  agree  upon  the  number  of  vessels  of  war  to  be 
built  or  purchased,  or  the  number  of  land  or  sea  forces 
to  be  raised,  or  to  appoint  a  Commander-in-Chief  of 
the  army  or  navy.  As  it  was  seldom  that  all  the 
states  were  represented  in  Congress  at  the  same  tune, 
the  restrictions  imposed  by  this  clause,  upon  free 
action  by  Congress,  was  even  greater  than  appears 
upon  its  face.  As  if  to  emphasize  and  perpetuate  the 
evils  contained  in  this  instrument,  the  last  article 
required  the  unanimous  consent  of  all  the  thirteen 
states  for  the  adoption  of  any  amendments. 

SECTION    95.    JUDICIAL    POWERS    OF    THE    UNITED 

STATES  GOVERNMENT  UNDER  THE  ARTICLES  OF 

CONFEDERATION. 

The  Articles  of  Confederation  made  no  provision 
for  the  creation  of  any  executive  department,  and  the 
judicial  powers  which  it  conferred  upon  the  new 
Federal  government  were  of  the  most  restricted  char- 
acter. The  ninth  article  gave  Congress  the  power  of 
'  'appointing  courts  for  the  trial  of  piracies  and  felonies 
committed  on  the  high  seas,  and  establishing  courts 
for  receiving  and  determining  finally,  appeals  in  all 
cases  of  captures,  provided  that  no  member  of  Con- 
gress shall  be  appointed  a  judge  of  any  of  the  said 
courts." 


LEGAL  HISTORY   OF  THE   COLONIES.  215 

Under  this  authority  a  permanent  court  of  appeal 
in  prize  cases  of  three  judges  was  created  in  1780. 
This  court  lacked  the  independence  of  the  Federal 
courts  under  the  Constitution,  and  in  several  instances 
action  was  taken  by  Congress  relative  to  pending  cases. 
No  permanent  court  was  ever  established  for  the  trial 
of  piracies  and  felonies  on  the  high  seas.  By  an  act 
of  Congress  4  it  was  provided  that  the  justices  of  the 
Supreme  or  Superior  Court  of  judicature,  and  the 
judge  of  the  Court  of  Admiralty  of  the  several  and 
respective  states,  or  any  two  or  more  of  them,  were 
designated  as  being  constituted  and  appointed  judges 
for  hearing  and  trying  such  offenders. 

Provision  was  also  made  in  the  Articles  of  Con- 
federation for  the  settlement  of  controversies  between 
different  states  or  between  persons  claiming  land  under 
grants  from  different  states.  The  second  and  third 
clauses  of  the  ninth  article  were  as  follows: 

"The  United  States,  in  Congress  assembled,  shall 
also  be  the  last  resort  on  appeal  in  all  disputes  and 
differences  now  subsisting  or  that  hereafter  may 
arise  between  two  or  more  states  concerning  boundary, 
jurisdiction,  or  any  other  cause  whatever;  which 
authority  shall  always  be  exercised  in  the  manner 
following:  Whenever  the  legislative  or  executive  au- 
thority or  lawful  agent  of  any  State  in  controversy 
with  another  shall  present  a  petition  to  Congress  stating 
the  matter  in  question  and  praying  for  a  hearing, 
notice  thereof  shall  be  given  by  order  of  Congress  to  the 
legislative  or  executive  authority  of  the  other  State  in 
controversy,  and  a  day  assigned  for  the  appearance  of 
the  parties  by  their  lawful  agents,  who  shall  then  be 
directed  to  appoint,  by  joint  consent,  commissioners 

4  Journals  of  Congress,  Volume  VII,  p.  65. 


216  LEGAL  HISTORY. 

or  judges  to  constitute  a  court  for  hearing  and  de- 
termining the  matter  in  question;  but  if  they  cannot 
agree,  Congress  shall  name  three  persons  out  of  each 
of  the  United  States,  and  from  the  list  of  such  persons 
each  party  shall  alternately  strike  out  one,  the  peti- 
tioners beginning,  until  the  number  shall  be  reduced 
to  thirteen;  and  from  that  number  not  less  than  seven 
nor  more  than  nine  names,  as  Congress  shall  direct, 
shall,  in  the  presence  of  Congress,  be  drawn  out  by  lot, 
and  the  persons  whose  names  shall  be  so  drawn,  or  any 
five  of  them,  shall  be  commissioners  or  judges,  to  hear 
and  finally  determine  the  controversy,  so  always  as  a 
major  part  of  the  judges  who  shall  hear  the  cause  shall 
agree  in  the  determination;  and  if  either  party  shall 
neglect  to  attend  at  the  day  appointed,  without  show- 
ing reasons  which  Congress  shall  judge  sufficient,  or, 
being  present,  shall  refuse  to  strike,  the  Congress  shall 
proceed  to  nominate  three  persons  out  of  each  State, 
and  the  Secretary  of  Congress  shall  strike  in  behalf 
of  such  party  absent  or  refusing;  and  the  judgment 
and  sentence  of  the  court  to  be  appointed,  in  the 
manner  before  prescribed,  shall  be  final  and  conclusive ; 
and  if  any  of  the  parties  shall  refuse  to  submit  to  the 
authority  of  such  court,  or  to  appear  or  defend  their 
claim  or  cause,  the  court  shall,  nevertheless,  proceed 
to  pronounce  sentence  or  judgment,  which  shall  in 
like  manner  be  final  and  decisive,  the  judgment  or 
sentence  and  other  proceedings  being  in  either  case 
transmitted  to  Congress,  and  lodged  among  the  acts 
of  Congress  for  the  security  of  the  parties  concerned: 
provided  that  every  commissioner,  before  he  sits  in 
judgment,  shall  take  an  oath,  to  be  administered  by 
one  of  the  judges  of  the  Supreme  or  Superior  Courts 
of  the  State  where  the  cause  shall  be  tried,  "well  and 


LEGAL  HISTORY  OF  THE  COLONIES. 


217 


truly  to  hear  and  determine  the  matter  in  question 
according  to  the  best  of  his  judgment,  without  favor, 
affection,  or  hope  of  reward,"  provided  that  no  State 
shall  be  deprived  of  territory  for  the  benefit  of  the 
United  States. 

"All  controversies  concerning  the  private  right 
to  soil,  claimed  under  different  grants  of  two  or  more 
states,  whose  jurisdictions  as  they  may  respect  such 
lands,  and  the  states  which  passed  such  grants  are 
adjusted,  the  said  grants  or  either  of  them  being  at 
the  same  time  claimed  to  have  originated  antecedent 
to  such  settlement  of  jurisdiction,  shall,  on  the  petition 
of  either  party  to  the  Congress  of  the  United  States,  be 
finally  determined  as  near  as  may  be  in  the  same  man- 
ner as  is  before  prescribed  for  deciding  disputes  re- 
specting territorial  jurisdiction  between  different 
states." 

There  is  but  one  instance  of  a  trial  and  judgment 
under  the  auspices  of  Congress  of  a  controversy  be- 
tween states.  The  case  in  question  was  the  famous 
dispute  between  Pennsylvania  and  Connecticut  over 
the  Wyoming  Valley.5  This  controversy,  which  arose 
out  of  the  overlapping  of  the  early  grants  to  Pennsyl- 
vania and  Connecticut,  was  decided  in  1782  in  favor 
of  Pennsylvania.  Several  other  disputes  between 
different  states  were  referred  to  Congress  and  reached 
various  stages  of  development,  but  were  all  finally 
settled  by  agreement  between  the  contending  states.8 


'  For  an  account  of  the  case  see 
Carson's  "History  of  the  Su- 
preme Court  of  the  United 
States,"  Volume  I,  pp.  67-73. 

•  Some  of  these  controversies  were 
as  follows:  (a)  Between  Penn- 
sylvania and  Virginia  over  the 
Mason  and  Dixon's  line,  in 
1779.  (b)  Between  Virginia 
and  New  Jersey  over  a  tract  of 


land  in  Ohio,  in  1784.  (c) 
Between  Massachusetts  and 
New  York  in  1784,  over  a  land 
dispute.  (d)  Between  South 
Carolina  and  Georgia  in  1786 
over  the  jurisdiction  over  the 
upper  waters  of  the  Savannah 
River.  (e)  Several  disputes 
relative  to  the  sovereignty  over 
the  territory  of  Vermont. 


218  LEGAL  HISTORY. 

SECTION    96.    CAUSES    LEADING    UP    TO    THE   CON- 
STITUTIONAL CONVENTION. 

It  is  not  intended  to  treat  of  the  general  history 
and  condition  of  the  country  while  under  the  Articles 
of  Confederation.7  The  government  proved  itself  en- 
tirely inadequate  for  the  existing  circumstances.  A 
government  without  the  power  of  taxation  and  with- 
out the  power  to  enforce  its  laws  against  any  individual 
citizen,  a  government  which  could  only  treat  condi- 
tionally with  foreign  powers,  and  whose  foreign  policy 
could  be  thwarted  by  that  of  any  State,  could  com- 
mand neither  obedience  at  home  nor  respect  abroad. 
An  attempt  was  made  to  remedy  the  lack  of  power  of 
Congress  to  raise  a  revenue  by  an  amendment  to  the 
Articles  of  Confederation,  allowing  Congress,  under 
strict  limitations,  the  power  to  lay  import  duties. 
Such  amendment  was  twice  defeated  by  the  action  of 
a  single  State. 

The  chain  of  events  which  culminated  in  the 
Constitutional  Convention  of  1787  began  with  a  con- 
ference between  the  Commissioners  of  the  States  of 
Virginia  and  Maryland,  held  at  Washington's  house 
at  Mount  Vernon,  early  in  1785,  to  discuss  the  naviga- 
tion of  the  Potomac. 

During  this  meeting,  Washington  took  occasion 
to  suggest  that  Pennsylvania  should  be  invited  to  meet 
with  the  two  states  already  represented  at  a  future 
meeting,  and  that  also  while  these  states  were  together, 
it  might  be  well  to  discuss  other  matters  of  common 
interest  to  the  states,  such  as  a  uniform  system  of 
duties  and  other  commercial  relations.  These  sugges- 
tions were  acted  upon  by  the  Maryland  Legislature. 

For  the  general  history  of  this  period  read  Fiske's  "The  Critical  Period  of 
American  History." 


LEGAL  HISTORY  OF  THE   COLONIES.  219 

This  State,  in  sending  its  ratification  of  the  compact 
as  to  the  jurisdiction  over  the  Potomac  to  Virginia, 
accompanied  it  with  the  suggestion  that  if  Pennsyl- 
vania was  to  be  consulted  on  this  matter,  then  Dela- 
ware should  also  be  consulted,  and  that  while  these 
states  were  together,  they  might  as  well  also  consult 
together  regarding  a  uniform  system  of  duties,  and 
then  going  still  further,  the  Maryland  Legislature 
suggested  that  instead  of  having  a  conference  of  three 
or  four  states,  they  have  one  of  thirteen,  and  invite 
each  State  to  send  delegates  to  a  meeting  for  a  mere 
informal  discussion  of  the  questions  agitating  the 
United  States  at  that  tune.  Upon  the  receipt  of  this 
communication  from  Maryland,  Virginia  issued  a 
general  invitation  to  the  other  states  to  send  commis- 
sioners to  a  meeting  to  be  held  at  Annapolis  on  the 
first  Monday  of  September,  1786. 

The  Annapolis  gathering  proved  to  be  a  failure; 
only  five  states  being  represented — Virginia,  Delaware, 
Pennsylvania,  New  Jersey  and  New  York.8  The 
states  represented  were  too  few  to  take  any  action  on 
the  question  of  governmental  reform.  Rather  than 
adjourn,  however,  without  doing  anything,  they 
adopted  an  address  prepared  by  Alexander  Hamilton 
which  they  sent  to  the  several  states.  In  this  address 
the  states  were  urged  to  assemble  at  Philadelphia  on 
the  second  Monday  of  the  following  May,  1787,  "to 
devise  such  further  provisions  as  shall  appear  to  then 
be  necessary  to  render  the  Constitution  of  the  Federal 
Government  adequate  to  the  exigencies  of  the  Union, 
and  to  report  to  Congress  such  an  act  as  when  agreed 
to  by  them,  and  confirmed  by  the  legislatures  of  every 

8  Massachusetts,  New  Hampshire,  None  had  been  appointed  by 

Rhode  Island  and  North  Caro-  Connecticut,  Maryland,  South 

lina  had  each  appointed  com-  Carolina  or  Georgia, 
missioners  who  did  not  attend. 


220  LEGAL   HISTORY. 

State,  would  effectually  provide  for  the  same."  An 
effort  was  made  in  October,  to  secure  the  endorse- 
ment of  Congress  for  this  convention,  but  without 
avail.  The  evils  of  the  Articles  of  Confederation, 
however,  were  manifested  during  the  winter  of  1786- 
87,  as  never  before,  and  early  in  1787,  Congress  receded 
from  its  position  and  issued  a  call  for  a  convention, 
identical  as  to  the  tune  and  place  of  its  assembling 
with  the  one  called  by  the  Annapolis  Convention. 


CHAPTER  X. 
AMERICAN  CONSTITUTIONAL  HISTORY. 

SECTION  97.    THE  CONSTITUTIONAL  CONVENTION. 

The  second  Monday  of  May,  1787,  fell  upon  the 
14th.  On  that  day  only  a  few  delegates  had  assembled, 
and  seven  states  were  not  represented  until  May  25th, 
when  the  first  meeting  of  the  Federal  Constitutional 
Convention  was  held.1 

A  correct  appreciation  and  understanding  of  the 
United  States  Constitution  requires  a  knowledge  of  the 
history  of  the  Constitutional  Convention.  It  was 
with  both  vague  and  widely  differing  notions  as  to 
what  should  be  done  that  the  members  of  the  con- 
vention assembled  together  on  this  25th  day  of  May, 
1787.  There  was,  however,  one  characteristic  which 
seems  to  have  belonged  to  all  this  remarkable  body 
of  men.  They  seem,  almost  without  exception,  to 
have  been  men  of  a  practical,  instead  of  a  speculative 
mind;  men  imbued  with  all  the  conservatism  of  the 
Anglo-Saxon  race.  There  is  little  in  the  Constitution 
which  originated  in  the  minds  of  any  member  of  this 
convention.  What  they  did  was  to  select  from  the 
political  institutions  of  the  past  those  features  best 
suited,  in  their  opinion,  for  our  country,  and  then  to 
mould  or  modify  them  to  meet  existing  conditions. 

1  Massachusetts,  New  York,  New  gates    from    Connecticut    and 

Jersey.     Pennsylvania.     Dela-  Maryland    appeared    on    May 

ware,  Virginia,  North  Carolina,  28th.   New  Hampshire  was  first 

South   Carolina,    and    Georgia  represented  on  July  23,  while 

were  represented  at  the  opening  Rhode  Island  took  no  part  in 

session  on  May  25th.       Dele-  the  Convention. 

221 


222  LEGAL  HISTORY. 

What,  then,  were  the  sources  from  which  the 
framers  of  the  Federal  Constitution  drew  their  material? 
First  and  foremost  stand  the  constitutions  of  the  differ- 
ent states.  It  has  been  said  that  every  provision  of  the 
Constitution  of  the  United  States  which  has  worked 
well,  was  suggested  by  some  provision  in  the  Constitu- 
tion of  some  State,  and  that  every  provision  which 
was  not  so  suggested  has  worked  poorly.  Such  a 
statement  is  too  broad  to  be  wholly  true,  but  it  serves 
to  illustrate  the  importance  of  this  source.  For 
example,  the  compromise  which  saved  the  Constitu- 
tion when  the  convention  was  about  to  go  to  pieces 
on  the  question  of  representation  in  Congress,  was 
suggested  by  a  provision  of  the  Connecticut  Constitu- 
tion. (The  various  provisions  of  the  United  States 
Constitution  copied  from  the  various  State  constitu- 
tions will  be  shown  when  the  Constitution  is  treated 
in  detail  in  the  next  volume.)  Next  in  importance 
among  the  sources  from  which  the  United  States  Con- 
stitution was  drawn,  stands  the  English  system  of 
government.  It  was  the  English  system  of  govern- 
ment, however,  as  laid  down  by  Blackstone,  and  as 
understood  generally  by  Americans  at  that  time, 
which  served  as  a  guide  to  the  Constitution  makers, 
rather  than  the  English  government  as  it  really  ex- 
isted. Like  Blackstone,  the  members  of  the  Con- 
stitutional Convention  were  all  the  time  looking  at 
the  letter  of  the  English  law,  rather  than  its  spirit. 
They  were  acquainted  with  the  laws  of  the  English 
Constitution,  but  not  with  its  conventions.  They 
saw  the  three  branches  of  the  legislative  power  without 
appreciating  the  supremacy  of  the  House  of  Commons. 
To  them  the  executive  power  appeared  vested  in  the 
King  rather  than  in  the  ministry.  The  closest  copy- 


AMERICAN   CONSTITUTIONAL   HISTORY.  223 

ing  from  English  law  appears  in  the  Bill  of  Rights 
where  various  provisions  of  the  Magna  Charta  or  Bill 
of  Rights  appear  embodied  almost  verbatim  in  the 
Constitution,  or  in  the  first  ten  amendments.  It 
should  be  added,  that  the  State  Constitutions  were 
largely  based  on  English  law,  and  thus,  much  that 
was  copied  from  them  came  indirectly  from  England, 
although  many  of  the  most  valuable  provisions  sug- 
gested by  the  State  Constitutions  have  nothing  re- 
sembling them  in  the  English  law  or  Constitution. 

A  recent  writer  2  has  made  an  effort  to  make  out 
a  Dutch  origin  for  American  institutions.  The  free 
schools,  the  written  ballot,  and  some  features  of  the 
township  system,  may  be  largely  traced  to  Dutch 
sources,  but  we  find  little  trace  of  Dutch  influence  hi 
the  Constitution  itself.  The  Dutch  republic  was, 
however,  of  service  to  the  framers  of  our  Constitution, 
as  furnishing  a  striking  example  of  the  evils  attending 
an  undue  exaltation  of  the  power  of  local  governments. 
The  Articles  of  Confederation  were  also  of  benefit  as 
showing  what  to  avoid,  rather  than  as  presenting  much 
worthy  of  being  followed.  Certain  provisions  of  these 
articles  appear,  however,  in  a  slightly  modified  form, 
in  the  Constitution,  noticeably  the  clause  relative  to 
the  reciprocal  rights  of  the  citizens  of  the  several  states. 

The  period  during  which  the  convention  met 
was  one  of  a  great  revival  of  classical  study.  The 
minds  of  the  people  were  filled  with  admiration  of  the 
character  and  institutions  of  the  ancient  Romans. 
Much  of  this  sentiment  is  to  be  found  in  the  speeches 
in  the  Constitutional  Convention,  but  little  evidence 
of  Roman  influence  is  to  be  found  in  the  text  of  the 
Constitution  except  in  the  name  of  the  upper  branch 

•  Mr.  Douglas  Campbell,  in  "Puritan  in  Holland,  England,  and  America." 


224  LEGAL  HISTORY. 

of  the  legislative  body,  and  this  name  was  already  in 
use  in  eleven  of  the  states. 

Three  great  causes  of  dissension  early  manifested 
themselves  among  the  members  of  the  Convention. 
The  interests  of  the  large  and  of  the  small  states  came 
at  once  into  conflict,  while  the  members  of  the  con- 
vention became  arrayed  either  as  supporters  or  oppo- 
nents of  a  strong  central  government,  and  as  the  friends 
or  enemies  of  slavery.  The  positions  of  the  different 
parties  on  the  first  two  questions  were  set  forth  in  the 
" Virginia "  and  "New  Jersey"  plans,  while  the  various 
conflicting  interests  were  brought  to  a  certain  degree 
of  harmony  by  the  three  great  compromises  of  the 
Constitution.  It  is  around  the  Virginia 3  and  New 
Jersey 4  plans  and  these  three  compromises  that  the 
history  of  the  Constitutional  Convention  centers. 

SECTION  98.    THE  VIRGINIA  AND  NEW  JERSEY  PLANS. 

The  period  from  May  25th  to  May  29th  was  taken 
up  with  the  organization  of  the  convention;  and  it  is 
the  introduction  of  the  Virginia  plan,  on  the  latter 
date,  that  marks  the  commencement  of  the  real  work 
of  the  convention.  From  May  29th  to  June  14th  the 
convention  was  engaged  in  the  consideration  of  the 
Virginia  plan,  in  the  committee  of  the  whole.  As  the 
committee  was  about  to  report  on  the  last  named  date, 
certain  members  from  some  of  the  smaller  states  asked 
for  delay  in  order  to  be  able  to  present  a  plan  of  their 
own,  based  on  principles  different  from  those  forming 
the  basis  of  the  Virginia  plan.  This  delay  being 
granted,  the  New  Jersey  plan  was  presented  on  June 
15th.  The  two  plans  were  then  debated  together  until 

3  See    Madison's    Journal    of    the  *  See    Madison's    Journal    of    the 

Federal  Convention,  under  date  Federal  Convention,  under  date 

of  May  29,  or  Appendix  H.  of  June  15,  or  Appendix  I. 


AMERICAN   CONSTITUTIONAL  HISTORY.  225 

June  19th,  when  the  committee  of  the  whole  voted  to 
report  to  the  convention  the  draft  of  resolutions  as 
prepared  before  the  introduction  of  the  New  Jersey 
plan.  For  a  little  over  a  month,  the  convention  de- 
bated upon  this  report.  Upon  July  26th,  the  report 
as  it  then  stood,  after  numerous  amendments,  was 
referred  to  a  committee  of  detail,  who,  on  August  6th, 
reported  to  the  convention  the  first  draft  of  the  Con- 
stitution. After  six  weeks  more  of  amending  and 
moulding  the  Constitution  into  shape,  the  convention 
completed  its  labors,  and,  on  September  17,  1787, 
submitted  its  report  to  Congress  and  the  states. 

The  Virginia  plan,  which,  as  modified  by  the  three 
great  compromises,  served,  in  the  main,  as  a  basis  of 
the  Constitution,  was  drawn  up  by  the  members  from 
the  larger  states,  especially  those  from  Virginia,  and 
was  introduced  into  the  Convention  by  Mr.  Randolph 
of  that  State.  It  was  the  plan  of  the  larger  states  and 
of  the  friends  of  a  strong  central  government.  The 
six  states  which,  in  the  main,  supported  its  essential 
provisions  were  Massachusetts,  Pennsylvania,  Virginia, 
North  Carolina,  South  Carolina,  and  Georgia. 

The  system  of  government  for  the  United  States, 
as  laid  down  in  the  fifteen  resolutions  which  composed 
the  Virginia  plan,  was  a  radical  departure  from  that 
contained  in  the  Articles  of  Confederation  and,  to 
many,  a  striking  innovation.  The  Virginia  plan  pro- 
vided for  a  national  instead  of  a  confederated  govern- 
ment. To  use  the  expressive  German  terms,  terms 
for  which  there  are  no  good  .equivalents  in  the  English 
language,  it  was  to  be  a  Statenbund  instead  of  a  Bunde- 
stadt.  This  characteristic  of  the  plan  was  emphasized 
by  the  committee  of  the  whole,  who,  in  place  of  the 
first  resolutions  in  the  original  plan,  "Resolved,  that 

Vol.  I.— 15. 


226  LEGAL   HISTORY. 

the  Articles  of  Confederation  ought  to  be  so  corrected 
and  enlarged  as  to  accomplish  the  objects  proposed 
by  their  institution;  namely,  'common  defense,  security 
of  liberty,  and  general  welfare, ' ;I '  substituted  the  more 
uncompromising  declaration,  '  'Resolved,  that  it  is 
the  opinion  of  this  committee,  that  a  national  govern- 
ment ought  to  be  established,  consisting  of  a  supreme 
legislative,  executive,  and  judiciary. " 

The  Virginia  plan  provided  for  a  double  legislative 
body,  with  proportional  representation  in  each  branch. 
The  members  of  the  lower  House  were  to  be  elected 
by  the  people,  and  those  of  the  upper  House  by  the 
lower  House,  out  of  a  proper  number  of  persons 
nominated  by  the  individual  legislatures.  This  na- 
tional legislature  was  to  have  the  powers  vested  in 
Congress,  by  the  confederation,  and  in  addition,  the 
power  to  legislate  in  all  cases  where  the  separate  states 
were  incompetent,  or  in  which  the  harmony  of  the 
United  States  was  in  danger  of  being  interrupted  by 
the  exercise  of  individual  legislation.  It  was  also 
allowed  to  negative  all  laws  passed,  by  the  several 
states  contravening,  in  its  opinion,  the  articles  of 
union,  or  any  treaty  subsisting  under  the  authority  of 
the  Union,  and  to  call  forth  the  force  of  the  Union 
against  any  member  of  the  Union  failing  to  fulfill  its 
duty  under  the  articles  thereof. 

There  was  to  be  a  national  executive,  to  be  chosen 
by  the  national  legislature,  but  the  resolution  was 
silent  on  the  question  as  to  whether  such  executive 
should  consist  of  a  single  person  or  a  commission.  To 
the  executive  and  a  "convenient  number  of  the  na- 
tional judiciary"  was  given  a  qualified  veto  power. 
The  national  judiciary  was  to  consist  of  one  or  more 
supreme  tribunals,  and  of  inferior  tribunals,  the  judges 


AMERICAN   CONSTITUTIONAL   HISTORY.  227 

of  which  were  to  be  chosen  by  the  national  legislature 
and  to  hold  office  during  good  behavior.  The  juris- 
diction of  these  courts  was  to  extend  to  cases  of  piracies 
and  felonies  on  the  high  seas;  captures  from  an  enemy; 
cases  in  which  foreigners  or  citizens  of  other  states, 
applying  to  such  jurisdiction,  might  be  interested; 
cases  respecting  the  collection  of  the  national  revenue; 
impeachments  of  any  national  office;  and  questions 
involving  the  national  peace  and  harmony. 

Provision  was  made  in  the  resolutions,  for  the 
admission  of  new  states;  for  the  guaranteeing  to  each 
State,  by  the  United  States,  of  a  republican  form  of 
government;  for  the  continuance  of  Congress  until  a 
given  day  after  the  reform  of  the  articles  of  the  Union 
should  have  been  adopted,  and  for  the  completion  of 
their  obligations;  for  amending  the  articles  of  the 
Union  without  the  consent  of  Congress;  for  binding 
the  legislative,  executive,  and  judiciary  powers  in  the 
several  states  by  oath,  to  support  the  articles  of  Union ; 
and  for  the  submitting  of  the  report  of  the  convention 
to  special  conventions  in  the  several  states. 

The  New  Jersey  plan  was  the  plan  of  the  smaller 
states,  and  of  the  extreme  advocates  of  states'  rights.5 

•  "This  plan  has  been  concerted  members  opposed  to  a  national 
among  the  Deputation,  or  government,  from  the  different 
members  thereof,  from  Connec-  motives,  began  now  to  produce 
ticut,  New  York,  New  Jersey,  serious  anxiety  for  the  result 
Delaware,  and  perhaps  Mr.  of  the  convention.  Mr.  Dick- 
Martin,  from  Maryland,  who  ison  said  to  Mr.  Madison, 
made  with  them  a  common  '  You  see  the  consequences  of 
course  though  on  different  prin-  pushing  things  too  far.  Some 
ciples.  Connecticut  and  New  of  the  members  from  the  small 
York  were  against  a  de-  states  wish  for  two  branches 
parture  from  the  principle  of  in  the  General  Legislature,  and 
the  Confederation,  wishing  are  friends  to  a  National  Go\- 
rather  to  add  a  few  more  powers  ernment ;  but  we  would  sooner 
to  Congress  than  to  substitute  submit  to  a  foreign  power,  than 
a  National  Government.  The  submit  to  be  deprived  in  both 
States  of  New  Jersey  and  Dela-  branches  of  the  legislature,  of 
ware  were  opposed  to  a  Nation-  an  equality  of  suffrage,  and 
al  Government,  because  its  thereby  be  thrown  under  the 
patrons  considered  a  propor-  domination  of  the  larger 
tional  representation  of  the  States.'  '  Foot-note  to  Madi- 
States  as  the  basis  of  it.  The  son's  Journal  of  the  Federal 
eagerness  displayed  by  the  Convention. 


228  LEGAL  HISTORY. 

It  appears  to  have  been  drawn  up  mainly  by  the 
delegates  from  New  Jersey  and  Delaware,  and  was 
introduced  on  June  15th,  by  Mr.  Patterson  of  New 
Jersey.  The  New  Jersey  plan  proposed  merely  to 
amend  the  Articles  of  Confederation,  retaining  the 
confederation  system  and  the  equal  representation  of 
the  states  in  Congress.  Its  greatest  advance  on  the 
Articles  of  Confederation  consisted  in  giving  to  Con- 
gress the  power  to  raise  a  revenue,  '  'By  levying  a  duty 
or  duties  on  all  goods  or  merchandise  of  foreign  growth 
or  manufacture,  imported  into  any  part  of  the  United 
States;  by  stamps  on  paper,  vellum  or  parchment;  and 
by  a  postage  on  all  letters  passing  through  the  general 
post-office."  The  first  resolution  read:  "Resolved, 
that  the  Articles  of  Confederation  ought  to  be  so  re- 
vised, corrected  and  enlarged  as  to  render  the  Federate 
Constitution  adequate  to  the  exigencies  of  government, 
and  the  preservation  of  the  Union."  The  plan  pro- 
vided for  an  executive  council,  and  a  Federal  judiciary 
to  consist  of  one  supreme  tribunal,  which  was  to  have 
original  jurisdiction  over  all  impeachments  of  Federal 
officers;  and  appellate  jurisdiction  over  the  State 
courts  in  all  cases  touching  the  right  of  ambassadors; 
in  all  cases  of  captures  from  an  enemy;  in  all  cases  of 
piracies  and  felonies  and  on  the  high  seas;  in  all  cases 
in  which  foreigners  might  be  interested;  in  the  con- 
struction of  any  treaty  or  treaties;  and  in  all  cases 
relative  to  the  regulation  of  trade  or  the  collection  of 
the  Federal  revenue. 

The  sixth  resolution  contained  the  greatest  sur- 
render to  the  principles  of  a  strong,  central  govern- 
ment. It  was,  however,  a  resolution  containing  within 
itself  the  seeds  of  a  dissolution  of  the  Union  and  of 
civil  war.  The  resolution,  in  full,  was  as  follows: 


AMERICAN   CONSTITUTIONAL   HISTORY.  229 

"Resolved,  that  all  acts  of  the  United  States  in  Con- 
gress made  by  virtue  and  in  pursuance  of  the  powers 
hereby,  and  by  the  Articles  of  Confederation,  vested 
in  them,  and  all  treaties  made  and  ratified  under  the 
authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  respective  states,  so  far  as  those  acts  or 
treaties  shall  relate  to  the  said  states  or  their  citizens; 
and  that  the  judiciary  of  the  several  states  shall  be 
bound  thereby  in  their  decisions,  anything  in  the 
respective  laws  of  the  individual  states  to  the  contrary 
notwithstanding;  and  that  if  any  State,  or  any  body 
of  men  in  any  State,  shall  oppose  or  prevent  the  carry- 
ing into  execution  such  acts  or  treaties,  the  Federal 
executive  shall  be  authorized  to  call  forth  the  power 
of  the  Confederate  States,  or  so  much  thereof  as  may 
be  necessary,  to  enforce  and  compel  an  obedience  to 
such  acts,  or  an  observance  of  such  treaties."  The 
resolution  appears  as  a  confession  on  the  part  of  the 
States'  Rights  Party,  that  the  only  alternative  to  the 
granting  to  the  central  government  of  the  power  to 
act  directly  on  the  individual  citizens,  was  to  grant 
them  the  power  to  make  war  on  the  states;  a  power 
which  if  exercised  could  hardly  have  failed  to  have 
torn  the  Union  to  pieces.  With  this  alternative  before 
them,  the  action  of  the  convention  cannot  seem  sur- 
prising. 

The  test  vote  between  the  Virginia  and  New 
Jersey  plans,  as  a  whole,  came  on  June  19th  upon  the 
motion  that  the  committee  of  the  whole  report  the 
resolutions  to  the  House,  as  they  stood  before  the 
introduction  of  the  New  Jersey  plan.  The  vote  on 
this  motion  stood  seven  states  to  three  in  favor  of 
the  Virginia  plan.6 

8  Massachusetts,          Connecticut,  New  Jersey  and  Delaware;  with 

Pennsylvania,   Virginia,  North  the  vote  of  Maryland  equally 

Carolina,  South  Carolina,  and  divided. 
Georgia    against    New    York, 


230  LEGAL  HISTORY. 

SECTION   99.     THE   THREE   GREAT   COMPROMISES   IN 
THE  CONSTITUTIONAL  CONVENTION. 

The  history  of  the  adoption  of  the  various  parts 
of  the  Constitution  in  their  existing  form  will  be 
treated  in  connection  with  the  discussion  of  the  sub- 
ject of  Constitutional  Law.  A  brief  statement,  how- 
ever, of  the  three  great  compromises  of  the  Constitu- 
tional Convention  finds  a  proper  place  in  this  chapter. 
First  in  importance  stands  the  so-called  Connecticut 
Compromise,  which  succeeded  in  bridging  over  the 
seemingly  impassable  chasm  between  the  Virginia 
and  the  New  Jersey  plans.  For  this  compromise,  as 
for  so  much  else,  the  Constitutional  Convention  was 
indebted  to  a  provision  in  one  of  the  State  constitu- 
tions. The  Constitution  of  Connecticut,  while  pro- 
viding for  senatorial  districts  arranged  according  to 
population,  divided  the  members  of  the  lower  House 
equally  among  the  different  existing  towns.  From 
the  beginning  of  the  convention,  Oliver  Ellsworth  and 
Roger  Sherman  of  Connecticut  seemed  to  have  con- 
sidered this  plan  of  equal  representation  in  one  house, 
and  proportional  representation  in  the  other,  as  a 
proper  basis  of  compromise  between  the  large  and  the 
small  states.  This  proposition  was  first  suggested  in 
the  convention  by  Mr.  Sherman  on  June  11,  1787. 
On  the  same  day  the  vote  of  Connecticut  was  cast  in 
favor  of  proportional  representation  in  the  lower 
House,  and  later  in  the  day  in  favor  of  equal  repre- 
sentation in  the  Senate.  The  six  states,  however, 
supporting  the  Virginia  plan,  still  maintained  their 
unbroken  ranks,  and  the  vote  was  in  favor  of  propor- 
tional representation  in  both  houses.  On  June  19th, 
Connecticut  was  found  voting  for  the  Virginia  plan 
as  a  whole,  as  against  the  New  Jersey  plan.  The 


AMERICAN   CONSTITUTIONAL   HISTORY.  231 

Connecticut  delegates,  however,  were  still  far  from 
having  abandoned  their  suggested  compromise,  and 
were  prepared  to  offer  it  again  at  the  earliest  oppor- 
tunity. The  apparently  uncompromising  attitude  on 
the  part  of  the  larger  states  for  a  time  threw  Connecti- 
cut over  entirely  to  the  side  of  the  smaller  states,  and 
on  June  29th  her  vote  was  cast  in  the  convention 
against  proportional  representation  in  the  lower 
House.7 

On  the  second  day  of  July  Connecticut's  oppor- 
tunity came  at  last.  The  growing  discontent  of  the 
smaller  states  at  length  had  begun  to  arouse  the  fear 
among  some  of  the  delegates  from  the  "six"  states, 
that  they  were  perhaps  going  too  far.  When,  on  this 
day,  Oliver  Ellsworth  moved  for  an  equality  of  the 
states  in  the  upper  branch,  Mr.  Baldwin,  of  Georgia, 
divided  the  vote  of  that  State  by  voting  with  the 
smaller  states.  The  result  was  a  tie  and  a  deadlock. 
After  a  brief  period  of  hesitancy,  the  convention 
referred  this  whole  matter  to  a  committee  of  one  from 
each  State,  who  three  days  later  (July  5,  1787),  re- 
ported as  follows:  "The  committee  to  whom  was 
referred  the  eighth  resolution  of  the  report  of  the 
committee  of  the  whole  House,  and  so  much  of  the 
seventh  as  has  not  been  decided  on,  submit  the  follow- 
ing report: 

"That  the  subsequent  propositions  be  recom- 
mended to  the  convention  on  condition  that  both  shall 
be  generally  adopted. 

"1.     That  the  first  branch  of  the  legislature,  each 

7  The  motion  was  to  agree  to  the  yeas  to  4  nays;  Massachusetts, 

clause  as  reported:    "that  the  Pennsylvania,  Virginia,  North 

rule    of    suffrage    in    the    first  Carolina,  South  Carolina,  and 

branch  ought  not  to  be  accord-  Georgia,    against    Connecticut, 

ing  to  that  established  by  the  New   York,   New  Jersey,   and 

Articles  of  Confederation.    The  Delaware;     with   the   vote   of 

vote  on  this  question  was  6  Maryland  equally  divided. 


232 


LEGAL   HISTORY. 


of  the  states  now  in  the  Union  shall  be  allowed  one 
member  for  every  40,000  inhabitants,  of  the  descrip- 
tion reported  in  the  seventh  resolution  of  the  committee 
of  the  whole  House;  that  each  State  not  containing 
that  number  shall  be  allowed  one  member;  that  all 
bills  for  raising  or  appropriating  money,  and  for  fixing 
the  salaries  of  the  officers  of  the  government  of  the 
United  States,  shall  originate  in  the  first  branch  of  the 
legislature,  and  shall  not  be  altered  or  amended  by  the 
second  branch;  and  that  no  money  shall  be  drawn 
from  the  public  treasury  but  in  pursuance  of  appro- 
priations to  be  originated  in  the  first  branch. 

"2.  That  in  the  second  branch,  each  State  shall 
have  an  equal  vote."  8 

After  being  debated  for  eleven  days,  and  some- 
what amended,9  this  report,  embodying  the  Connecti- 
cut compromise,  was  adopted  by  the  narrow  margin 
of  five  states  to  four — Connecticut,  New  Jersey, 
Delaware,  Maryland  and  North  Carolina,  against 


8  "This  report  was  founded  on  a 
motion  in  the  Committee  made 
by  Doctor  Franklin.  It  was 
barely  acquiesced  in  by  the 
members  from  the  States  op- 
posed to  an  equity  of  votes  in 
the  second  branch,  and  was 
evidently  considered  by  the 
members  on  the  other  side,  as 
a  gaining  of  their  point.  A 
motion  was  made  by  Mr.  Sher- 
man (who  acted  in  the  place  of 
Mr.  Ellsworth  who  was  kept 
away  by  indisposition),  in  the 
Committee,  to  the  follow- 
ing effect,  'That  each  State 
should  have  an  equal  vote  in 
the  second  branch;  provided 
that  no  decision  therein  should 
prevail  unless  the  majority  of 
States  concurring  should  also 
comprise  a  majority  of  the  in- 
habitants of  the  United  States.' 
This  motion  was  not  much  de- 
liberated on  nor  approved,  in 


the  Committee.  A  similar  pro- 
viso had  been  proposed,  in  the 
debates  on  the  Articles  of  Con- 
federation, in  1777,  to  the 
Articles  giving  certain  powers 
to  "nine  States."  See  Journals 
of  Congress  for  1777,  "page 
462."  Foot-note  to  Scott's 
Edition  of  Madison's  Journal 
of  the  Federal  Convention. 
The  resolution  as  passed  was  as 
follows: 

"Resolved,  That  in  the  original 
formation  of  the  Legislature  of 
the  United  States,  the  first  branch 
thereof  shall  consist  of  sixty-five 
members,  of  which  number  New 
Hampshire  shall  send  3,  Massa- 
chusetts, 8;  Rhode  Island,  1; 
Connecticut,  5;  New  York,  6; 
New  Jersey,  4;  Pennsylvania,  8; 
Delaware,  1;  Maryland,  6;  Vir- 
ginia, 10;  North  Carolina,  5; 
South  Carolina,  5;  Georgia,  3. 
But  as  the  present  situation  of 


AMERICAN   CONSTITUTIONAL   HISTORY. 


233 


Pennsylvania,  Virginia,  South  Carolina  and  Georgia. 
Massachusetts  was  divided,  and  all  the  delegates  from 
New  York  were  absent;  New  Hampshire  and  Rhode 
Island  were  not  represented  in  the  convention.  Dele- 
gates from  New  Hampshire  arrived  soon  after  this 
vote.  The  importance  of  the  Connecticut  compromise 
can  hardly  be  overestimated;  it  is  not  too  much  to  say, 
that  without  it  the  Constitution  could  not  have  been 
ratified.  Two  states,  Rhode  Island  and  North  Caro- 
lina, rejected  the  Constitution;  a  third,  New  York, 
would  have  done  so,  if  by  its  so  doing  the  adoption  of 
the  Constitution  would  have  been  defeated.  Rejec- 
tion by  two  more  states  would  have  defeated  the 
adoption  of  the  Constitution,  and  these  two  states 
would  have  been  found  in  Delaware  and  New  Jersey, 
if  equal  representation  in  the  Senate  had  not  been 
conceded  to  them. 


the  States  may  probably  alter  in 
the  number  of  their  inhabitants, 
the  Legislature  of  the  United 
States  shall  be  authorized,  from 
time  to  time,  to  appoint  the  num- 
ber of  representatives  and  in  case 
any  of  the  States  shall  hereafter 
be  divided,  or  enlarged  by  addi- 
tion of  territory,  or  any  two  or 
more  states  united,  or  any  new 
states  created  within  the  limits 
of  the  United  States,  the  Legisla- 
ture of  the  United  States  shall 
possess  authority  to  regulate  the 
number  of  representatives  in  any 
of  the  foregoing  cases,  upon  the 
principle  of  the  number  of  inhab- 
itants, according  to  the  provisions 
hereafter  mentioned;  provided 
always  that  representation  ought 
to  be  proportioned  according  to 
direct  taxation,  and  in  order  to 
ascertain  the  alteration  in  the 
direct  taxation,  which  may  be 
required  from  time  to  time  by  the 
changes  in  the  relative  circum- 
s*ances  of  the  States. 

"Resolved,   That   a   census   be 
taken  within  six  years  from  the 


first  meeting  of  the  Legislature 
of  the  United  States,  and  once 
within  the  term  of  every  ten  years 
afterwards,  of  all  the  inhabitants 
of  the  United  States,  in  the 
manner  and  according  to  the  ratio 
recommended  by  Congress  in 
their  resolution  of  the  18th  day 
of  April,  1783;  and  that  the 
Legislature  of  the  United  States 
shall  proportion  the  direct  taxa- 
tion accordingly. 

"Resolved,  That  all  bills  for 
raising  or  appropriating  money, 
and  for  fixing  the  salaries  of 
officers  of  the  Government  of  the 
United  States  shall  originate  in 
the  first  branch  of  the  Legislature 
of  the  United  States;  and  shall 
not  be  altered  or  amended  in  the 
second  branch;  and  that  no 
money  shall  be  drawn  from  the 
Public  Treasury,  but  in  pursuance 
of  appropriations  to  be  originated 
in  the  first  branch. 

"Resolved.  That  in  the  second 
branch  of  the  Legislature  of  the 
United  States,  each  State  shall 
have  an  equal  vote." 


234  LEGAL  HISTORY. 

With  the  adoption  of  the  Connecticut  compromise, 
the  union  between  the  small  states  and  the  extreme 
States'  Rights  party  came  to  an  end.  Delaware  and 
New  Jersey  became  among  the  strongest  supporters 
of  a  true  national  government,  and  were  two  of  the 
three  states  whose  convention  ratified  the  new  Con- 
stitution without  a  dissenting  vote.  The  compromise, 
however,  aroused  great  bitterness  on  the  part  of 
Pennsylvania  and  Virginia,  and  even  rendered  the 
ratification  of  the  Constitution  by  the  latter  State 
doubtful. 

Scarcely  less  bitter  than  the  controversy  between 
the  large  and  small  states  was  that  between  the 
opponents  and  supporters  of  slavery;  an  antagonism 
which  gave  rise  to  the  second  and  third  compromises 
of  the  convention.  The  first  of  these  settled  the  ques- 
tion of  how  slaves  should  be  counted  in  determining 
the  population  of  a  State,  for  the  purpose  of  apportion- 
ing direct  taxes  and  representation.  The  extreme 
South,  the  States  of  South  Carolina  and  Georgia,  in- 
sisted on  full  representation  in  Congress  for  the  slaves. 
To  such  abolitionists  as  Governor  Morris  or  James 
Wilson  any  additional  representation  granted  to  a 
State  on  account  of  people  whom  she  not  only  did  not 
permit  to  vote,  but  even  considered  as  mere  chattels, 
seemed  absurd  and  unjust.  The  compromise  which 
settled  this  contest  was  one  anticipated,  in  part,  by  a 
vote  of  the  Congress  several  years  before.  In  1783, 
when  Congress  was  endeavoring  to  apportion  the  quotas 
of  revenue  among  the  different  states,  this  same  ques- 
tion as  to  the  weight  to  be  given  to  the  slave  population 
had  arisen.  On  this  occasion,  James  Madison  proposed 
a  compromise,  which  was  accepted  by  Congress,  by 
which  the  slave  was  rated  as  equal  to  three-fifths  of  a 


AMERICAN   CONSTITUTIONAL   HISTORY.  235 

freeman.  This  same  ratio  was  now  adopted  by  the 
convention  for  the  apportionment  both  of  representa- 
tives and  direct  taxes. 

The  third  compromise  was,  in  the  words  of  Gov- 
ernor Morris,  "a  bargain"  between  the  extreme 
southern  states  and  New  England.  Each  of  these 
two  sections  had  a  particular  grievance  against  the 
Constitution  as  it  stood  in  the  form  reported  by  the 
Committee  of  Detail  on  August  6th.  The  sixth  sec- 
tion of  the  seventh  article,  which  required  a  two-third 
vote  to  Congress  to  pass  a  navigation  act,  was  a  severe 
blow  to  the  shipping  interests  of  New  England,  while 
the  South  was  dissatisfied  with  the  absence  of  a  pro- 
hibition against  the  laying  of  export  duties  by  Congress. 
Much  more  alarming  to  the  South,  however,  was  the 
proposal  of  Luther  Martin  of  Maryland,  on  August 
21st,  to  allow  Congress  to  tax  or  even  prohibit  the 
importation  of  slaves.  The  whole  social  and  industrial 
organization  of  the  extreme  South  was  at  this  time 
based  on  the  institution  of  slavery,  while  the  welfare 
of  New  England  depended  largely  on  her  shipping. 
A  compromise  between  these  two  sections  was  the 
logical  result.  The  provisions  of  this  compromise 
were  that  the  migration  or  importation  of  such  persons 
as  any  of  the  states  then  existing  should  think  proper 
to  admit,  should  not  be  prohibited  prior  to  the  year 
1808,  although  a  tax  not  to  exceed  $10  per  head  might 
be  levied  on  such  importation;  that  no  tax  or  duty 
shall  be  laid  on  articles  exported  from  any  states;  and 
that  section  six  of  article  seven  of  the  Constitution  (as 
it  then  stood),  which  required  a  two-third  vote  of 
Congress  to  pass  a  navigation  act,  should  be  stricken 
out.  This  compromise  was  adopted  by  the  vote  of 
seven  states  to  four;  New  Hampshire,  Massachusetts, 


236  LEGAL   HISTORY. 

Connecticut,  Maryland,  North  Carolina,  South  Caro- 
lina and  Georgia,  against  New  Jersey,  Pennsylvania, 
Delaware,  and  Virginia.  It  is  interesting  to  notice 
that  next  to  Pennsylvania,  the  State  whose  delegates 
were  most  bitterly  opposed  to  the  continuation  of  slave 
trade  was  Virginia.  In  theory,  there  is  much  to  be 
condemned  and  little  to  be  approved  in  this  compro- 
mise. It  was,  however,  a  practical  necessity,  if  the 
Constitution  was  to  be  adopted.  If  the  slave  trade 
had  been  prohibited,  South  Carolina  and  Georgia 
would  have  rejected  the  Constitution,  and  their  defec- 
tion would  have  been  as  fatal  to  its  success  as  the  loss 
of  Delaware  and  New  Jersey. 

SECTION  100.    ADOPTION  OF  THE  CONSTITUTION. 

The  Constitution,  as  reported  to  Congress  and  the 
states,  did  not  exactly  suit  anyone.  It  was  the  result 
of  compromises,  in  which  all  had  yielded  something. 
It  is  from  this  standpoint  that  we  must  judge  it.  The 
United  States  Constitution  is  the  product  of  gradual 
growth  and  the  needs  of  the  times,  not  of  abstract 
reasoning. 

Even  with  its  compromises,  the  fate  of  the  pro- 
posed Constitution  hung  in  the  balance  for  many 
months.  After  eight  days'  discussion,  it  was  sub- 
mitted to  the  several  states  by  Congress.  The  Dela- 
ware Convention  led  the  way  by  ratifying  the  Constitu- 
tion by  a  unanimous  vote  on  the  6th  day  of  December. 
Pennsylvania  and  New  Jersey  followed  during  the 
same  month,  the  latter  unanimously,  the  former  by  a 
two-thirds  vote.  Georgia  opened  the  year  1788  by 
ratifying  it  unanimously  on  January  2nd,  and  Con- 
necticut followed  a  week  later  by  a  vote  of  more  than 
three  to  one.  The  first  hard  contest  occurred  in 
Massachusetts,  where  the  contest  in  the  convention 


AMERICAN   CONSTITUTIONAL   HISTORY.  237 

lasted  four  weeks.  The  action  of  Samuel  Adams  in 
finally  declaring  for  it  turned  the  scale  and  the  Con- 
stitution was  ratified  by  a  vote  of  187  to  168.  This 
ratification,  however,  was  accompanied  by  the  proposal 
of  certain  amendments  to  the  Constitution  which  be- 
came largely  the  basis  for  the  first  amendments, 
Maryland  in  April  and  South  Carolina  in  May,  next 
ratified  the  Constitution  by  large  majorities.  New 
Hampshire  secured  the  honor  of  being  the  ninth  State 
to  ratify  the  Constitution,  and  thus  assuring  its  adop- 
tion, by  ratifying  it  on  June  21st,  and  Virginia  followed 
four  days  later.  On  July  26th,  the  New  York  Con- 
vention, mainly  through  the  influence  of  Hamilton, 
ratified  the  Constitution  by  a  narrow  majority.10 
Rhode  Island  and  North  Carolina  at  first  rejected  the 
Constitution. 

SECTION  101.    THE  EARLY  AMENDMENTS. 

The  first  Congress  took  steps  to  supply  the  absence 
of  a  Bill  of  Rights  in  the  Constitution,  by  submitting 
twelve  proposed  amendments  to  the  states  in  1789. 
Ten  of  those  were  ratified  by  a  sufficient  number  of 
states,  and  became  the  first  ten  amendments.  The 
decision  of  the  Supreme  Court  in  Chisholm  vs.  Georgia, 
to  the  effect  that  a  State  could  be  sued  by  a  citizen  of 
another  State  led  to  the  eleventh  amendment.  The 
twelfth  amendment  resulted  from  the  unsatisfactory 
state  of  the  law  governing  the  election  of  the  President, 
as  shown  by  the  election  of  1800. 

10  The  Constitution  was  ratified  by  Connecticut,  January  9,  1788, 

the  different  states  on  the  fol-  128-40. 

lowing  days  and  by  the  follow  -  Massachusetts,     February     6, 

ing  votes:  ,  1788,  187-168. 

Delaware,  December  6,  1787,  Maryland,  April  28,  1788,  63- 

unanimously.  11. 

Pennsylvania,  December  12,  South  Carolina,  May  23,  1788, 

1787,  46-23.  149-73. 

New  Jersey,  December  18,  New  Hampshire,  June  21, 1788. 

1787,  unanimously.  57—46. 

Georgia,  January  2, 1788,  unan-  Virginia,  June  25,  1788,  89-79. 

imously.  New  York,  July  26. 1788  30-27 


238  LEGAL  HISTORY. 

SECTION  102.     POLITICAL  DIVISIONS  ON  THE  INTER- 
PRETATION OF  THE  CONSTITUTION. 

This  question  as  to  the  relative  powers  of  the 
government  of  the  United  States  and  of  the  State 
governments,  was  the  principal  dividing  line  between 
the  American  political  parties,  in  the  early  days  of  the 
Republic.  It  was,  in  fact,  by  politics  as  much  as  by 
law,  that  the  settlement  of  this  controversy  was  to 
be  effected.  It  must  be  borne  in  mind  that  in  spite 
of  the  small  changes  which  have  been  made  by  amend- 
ment in  the  text  of  the  Constitution,  since  its  adoption, 
the  relations  which  the  states  bear  to  the  general 
government  at  the  present  tune  is  a  very  different 
thing  from  the  relation  which  they  bore  in  the  early 
days  of  the  Constitution.  The  weight  of  power,  the 
center  of  gravity,  which  at  first  inclined  towards  the 
individual  states,  has  now  swung  far  over  towards  the 
central  government.  The  movement  in  this  direction 
has  been  almost  continuous  throughout  the  hundred 
and  nineteen  years  which  have  elapsed  since  the  Con- 
stitution was  adopted,  but  its  most  rapid  progress 
was  during  the  epoch  of  the  Civil  War.  The  Constitu- 
tional History  of  the  United  States  is  in  fact  divided 
by  this  war  into  two  sharply  defined  periods. 

The  grounds  for  differences  of  opinion  as  to  the 
meaning  of  the  Constitution,  largely  arose  out  of  the 
fact  that  the  wording  of  the  Constitution  had  been  the 
result  of  compromise.  Only  thirty-nine  of  the  fifty- 
five  delegates  to  the  convention  signed  the  Constitu- 
tion, and  it  failed  to  completely  satisfy  any  one. 
Indeed,  had  it  satisfied-  the  extreme  party  it  could 
never  have  been  adopted.  The  result  was,  that  after 
the  adoption  of  the  Constitution  each  faction  sought 
for  that  interpretation  of  the  instrument  which  would 
best  serve  to  carry  out  their  own  views  of  government. 


AMERICAN  CONSTITUTIONAL  HISTORY.  239 

At  the  election  of  1789,  the  conduct  of  the  govern- 
ment under  the  newly  adopted  Constitution,  was  not 
unnaturally  given  to  the  party  friendly  to  this  instru- 
ment, and  the  government  of  the  United  States  re- 
mained under  the  control  of  this  party  for  twelve 
years.  The  efforts  towards  the  strengthening  of  the 
central  government,  which  were  made  during  this 
period,  were  the  work  of  the  legislative  and  executive 
departments.  The  judicial  department  was  still  weak 
and  the  tremendous  influence  which  this  department 
was  later  to  exercise  in  the  development  of  the  govern- 
ment of  the  United  States  was  not  yet  appreciated. 

The  troubled  conditions  of  the  tunes  caused  the 
Federal  party,  during  the  administration  of  President 
John  Adams,  to  pass  a  series  of  laws,  culminating  with 
the  Alien  and  Sedition  Acts,  for  the  purpose  of  strength- 
ening the  central  government.  These  laws  aroused  great 
indignation  and  opposition  to  the  government  and  ulti- 
mately drove  the  Federalist  party  from  power.  A  more 
immediate  result  was  the  calling  forth  of  the  most  dra- 
matic enunciations  of  the  State  rights  principles  to  be 
found  in  American  history  prior  to  the  secession  period. 

The  Virginia  and  Kentucky  resolutions  were  pro- 
clamations passed  by  the  Legislatures  of  these  states 
in  1798  and  1799,  denouncing  the  recent  usurpations 
of  power  (as  viewed  by  the  members  of  these  legis- 
latures) by  the  National  Government,  and  setting  forth 
the  relations  between  the  general  and  state  govern- 
ments, from  the  standpoint  of  the  states  rights  or  strict 
constructionist  standpoint. 

The  Virginia  resolutions  of  1798  declared  that  the 
constitution  was  a  compact  by  which  the  states  had 
surrendered  only  a  limited  portion  of  their  powers, 
that  whenever  the  Federal  Government  undertook  a 
step  over  the  boundary  of  its  delegated  authority,  it 


240  LEGAL  HISTORY. 

was  the  duty  of  the  states  to  interpose  and  maintain 
the  rights  which  they  had  reserved  to  themselves; 
that  the  Alien  and  Sedition  laws  were  an  usurpment 
by  the  Federal  Government  of  powers  not  granted  to 
it,  since  the  abridgment  of  liberty  of  speech  or  of  the 
press  had  been  especially  forbidden  by  the  constitution; 
that  the  State  of  Virginia  solemnly  declared  those  laws 
to  be  unconstitutional,  and  appealed  to  the  other  states 
to  join  in  that  declaration;  and  that  her  governor 
should  be  instructed  to  transmit  copies  of  these  reso- 
lutions to  the  governors  of  other  states  to  be  laid  before 
the  Legislatures.  These  resolutions  were  repeated  by 
the  Virginia  Legislature  in  the  following  year. 

The  Kentucky  resolutions  of  1798  were  to  the  same 
general  effect  as  those  of  Virginia,  but  with  the  addi- 
tional declaration  that  the  states  were  one  party  to 
the  compact,  and  the  Federal  Government  was  the 
other,  and  that  each  party  must  be  the  judge  of  infrac- 
tions of  the  agreement,  and  of  the  mode  and  measure 
of  redress.  The  next  year  the  Kentucky  resolutions 
of  1799  were  adopted.  They  declared  "nullification'* 
to  be  the  "rightful  remedy,"  but  qualified  this  by 
saying  that  they  "bowed  to  the  laws  of  the  Union." 

On  March  4,  1801,  the  control  of  both  the  execu- 
tive and  legislative  departments  of  the  United  States 
Government  passed  into  the  hands  of  the  strict  Con- 
structionists  Party,  which  was  to  retain  its  control 
of  these  departments,  with  the  exception  of  brief 
intervals,  for  sixty  years.  During  the  rule  of  this 
party  the  above  mentioned  departments,  were  hostile 
to  the  development  of  the  power  of  the  central  govern- 
ment at  the  expense  of  those  of  the  states,  and  yet 
during  this  very  period  we  find  a  great  increase  of 
the  powers  of  the  National  Government,  a  result 
brought  about  by  the  work  of  the  Judicial  Department. 


AMERICAN   CONSTITUTIONAL  HISTORY.  241 

One  of  the  last  official  acts  of  President  John 
Adams  was  the  appointment  of  John  Marshall  as  Chief 
Justice  of  the  Supreme  Court  of  the  United  States.  This 
appointment  was  to  strongly  affect  the  future  consti- 
tutional and  legal  history  of  the  country.  Under 
his  leadership  the  Supreme  Court  soon  began  to  take 
a  position  relative  to  the  constitution  which  materially 
contributed  to  the  completion  of  the  work  of  making 
one  Nation  out  of  the  United  States. 

For  the  half  century  beginning  in  1820  these  ques- 
tions of  State  rights  were  inseparably  connected  with 
the  slavery  question. 

SECTION  103.    RECENT  CONSTITUTIONAL  HISTORY. 

The  important  results  of  the  Civil  War,  from  a 
constitutional  law  standpoint  were  the  overthrow 
of  the  doctrine  of  secession  and  the  adoption  of  the  last 
three  amendments.  These  amendments,  together  with 
the  important  decisions  of  the  Supreme  Court  of  the 
United  States,  on  questions  growing  out  of  the  Civil 
War  and  the  reconstruction  period,  will  be  discussed 
in  Chapter  IX  of  United  States  Constitutional  Law. 

The  period  since  the  Civil  War  has  been  one 
which  has  given  greatly  increased  powers  to  the  central 
government.  The  attempted  undue  exaltation  of  the 
power  of  the  states  has  been  succeeded  by  a  re-action 
which  has  gone  as  far  to  the  other  extreme.  The 
present  tendencies  of  the  times  and  the  avowed  purpose 
of  a  large  class  in  the  community,  is  towards  the 
reduction  of  state  governments  to  a  position  of  strict 
subordination  to  the  Federal  authority.  Clashes  be- 
tween the  two  governments  are  becoming  very  fre- 
quent as  is  illustrated  by  the  San  Francisco  school 
controversy,  and  the  injunctions  recently  issued  by 
Federal  courts  against  the  enforcement  of  State  laws. 
vol.  i.— ia. 


QUESTIONS. 


INTRODUCTION  TO  THE  STUDY  OF  LAW.' 

Page  11. 

1.  What  is  law  in  the  broad  sense  of  the  term? 

2.  Define  law  in  its  more  restricted  sense. 

3.  How  has  the  Supreme  Court  of  the  United  States  denned  the 

laws  of  a  State  ? 

Page  12. 

1.  What  is  the  proper  purpose  of  laws? 

2.  What  is  the  basis  for  laws  in  absolute  monarchies  ? 

3.  What  is  the  basis  of  law  in  Constitutional  governments? 

4.  What  makes  society  possible  ? 

Page  13. 

1.  What  are  the  principal  legal  conceptions? 

2.  In  what  order  can  they  be  most  logically  studied? 

Page  14. 

1.  In  what  order  did  they  first  become  comprehended  by  early 
races  ? 

Page  15. 

1.  What  is  substantive  law? 

2.  What  is  adjective  law  ? 

3.  How  does  the  relation  existing  today  between  adjective  and 

substantive  law  differ  from  the  relation  existing  in  early 
times? 

4.  Who  was  Bracton  ?    Under  what  heads  did  he  write  of  the  law  ? 

5.  What  was  the  origin  of  law  ? 

6.  What  were  the  early  forces  behind  law? 

Page  16. 

1.  Compare  the  methods  of  enforcing  the  rules  of  International 
Law  today,with  the  methods  of  enforcing  the  rules  of  private 
law  in  early  times. 

243 


244  QUESTIONS. 

2.     What  were  the  oldest  branches  of  the  law? 

Page  17. 

1.  What  is  the  first  step  towards  social  organization? 

2.  What  is  the  basis  of  the  family  ? 

3.  How  did  marriages  arise  in  early  times  ? 

4.  Under  such  forms  of  marriage  what  is  naturally  the  position 

of  the  wife  ? 

5.  How  long  did  the  authority  of  the  father  over  his  children 

continue  ? 

Page  18. 

1.  In  case  of  the  commission  of  a  crime  which  wrong  will  the 

untrained  mind  most  easily  grasp,  the  wrong  to  the  indiv- 
idual or  the  wrong  to  society  ? 

2.  What  is  the  earliest  method  of  redress  for  wrong  doing? 

3.  What  is  the  first  step  away  from  this  state  of  affairs  ? 

Page  19. 

1.  What  classification  of  property  is  recognized  in  all  systems 

of  laws? 

2.  Which  was  the  earlier  to  come  into  existence,  real  or  personal 

property  ? 

3.  When  does  the  law  of  real  property  become  of  importance? 

Page  20. 

1.  How  do  primitive  and  highly  developed  systems  of  law  differ 

in  respect  to  contract  law? 

2.  How  do  the  Roman  law  and  the  Common  law  differ  in  respect 

to  Contract  law  ? 

Page  21. 

1.    Name  the  various  branches  of  the  law  treated  in  this  series  of 
books. 

Page  22. 

1.  To  what  extent  has  the  Common  law  become  the  basis  of 

American  law? 

2.  To  what  extent  has  Equity  become  the  basis  of  American  law? 

3.  To  what  extent  has  the  Civil  law  become  the  basis  of  American 

law? 


INTRODUCTION   TO   THE   STUDY   OF  LAW.  245 

Page  23. 

1.  What  Federal  law  is  there? 

2.  What  different  systems  of  adjective  law  are  found  in  the 

different  states  ? 

3.  Into  what  two  divisions  is  the  whole  body  of  the  law  divided  ? 

Page  24. 

1.  What  constitutes  the  written  law  of  the  United  States? 

2.  What  constitutes  the  written  law  of  the  states  ? 

3.  What  are  municipal  ordinances? 

4.  Where  is  the  unwritten  law  found? 

Page  25. 

1.  Where  can  the  unwritten  law  of  a  State  be  found? 

2.  What  is  the  Reporter  system? 

3.  What  is  the  relation  between  law  and  history? 

Page  26. 

1.     What  were  the  three  great  law  developing  nations  of  the  world  ? 


QUESTIONS. 

LEGAL  HISTORY. 
CHAPTER  I. 

Page  29. 

1.  From  what  races  were  the  Babylonians  descended? 

2.  What  causes  brought  the  Babylonians  into  constant  contact 

with  other  peoples  ? 

Page  30. 

1.     What  was  the  most  important  and  enduring  work  of  the 
Babylonians  ? 

Page  31. 

1.  How  was  the  Babylonian  law  spread  to  other  nations? 

2.  What  was  the  Code  of  Hammurabi? 

Page  32. 

1.  What  was  the  general  character  of  Babylonian  adjective  law? 

2.  How  were  questions  of  fact  decided  ? 

Page  34. 

1.  What  was  the  form  of  the  Babylonian  marriage? 

2.  Was  polygamy  permitted? 

3.  What  was  the  law  as  to  divorce  ? 

Page  35. 

1.  What  was  the  position  of  a  married  woman? 

2.  What  control  did  the  father  have  over  his  children? 

3.  How  could  land  be  transferred  ? 

4.  What  was  one  peculiar  feature  of  the  law  of  conveyancing? 

Page  36. 

1.  What  was  the  character  of  the  mortgages  in  use  at  Babylon? 

2.  Did  the  law  allow  a  person  to  dispose  of  his  property  by  will  ? 

3.  What  was  the  condition  of  contract  law? 

247 


248  QUESTIONS. 

Page  37. 

1.  What  was  the  position  of  banking  in  Babylon? 

2.  What  important  modern  principle  in  admiralty  law  was  recog- 

nized in  Babylon? 

CHAPTER  II. 

Page  39. 

1.  Was  Greece  a  great  law  making  nation? 

2.  What  is  the  position  of  Greece  in  legal  history? 

Page  40. 

1.  What  forms  of  government  existed  in  Greece? 

2.  What  was  the  connection  between  law  and  religion? 

Page  41. 

1.     What  were  the  different  steps  in  the  trial  of  a  law  suit  at 
Athens  ? 

Page  42. 

1.  What  were  the  rules  as  to  the  admissibility  of  evidence  at 

Athens  ? 

2.  From  what  nations  was  the  commercial  law  of  the  Greeks 

borrowed  ? 


CHAPTER  III. 

Page  43. 

1.     What  influence  has  Roman  law  had  upon  the  later  develop- 
ment of  law  ? 

Page  44. 

1.     How  did  the  institutions  of  early  Rome  compare  with  those  of 
other  cities  in  Italy  and  Greece  ? 

Page  45. 

1.  What  was  the  character  of  the  early  Roman  family? 

2.  What  was  the  earliest  form  of  marriage  at  Rome? 

3.  Who  could  be  married  by  this  ceremony  ? 


LEGAL  HISTORY.  249 

Page  46. 

1.  What  was  the  earlieat  form  of  Roman  government? 

2.  When  was  the  Republic  established? 

3.  Was  the  early  Roman  Republic  a  democracy  or  an  oligarchy? 

Page  47. 

1.    What  were  the  earliest  reforms  in  the  law? 

Page  48. 

1.  Who  were  the  decemvirs  ? 

2.  Why  were  they  appointed  ? 

3.  What  was  the  law  of  the  Twelve  Table*? 

Page  49. 

1.    What  law  marked  the  close  of  the  contest  between  patricians 
and  plebeians? 

Page  50. 

1.    What  were  the  four  principal  legis  actiones? 

Page  51. 

1.  What  were  the  characteristics  of  early  contract  law  at  Rome? 

2.  What  is  the  difference  between  the  attitude  of  ancient  and  the 

modern  nations  relative  to  extending  their  laws  and  insti- 
tutions over  other  races  ? 

Page  52. 

1.  What  was  the  jus  gentium? 

2.  For  whom  was  it  originated  ? 

Page  53. 

1.     What  was  the  later  history  of  the  jus  gentium? 

Page  54. 

1.  What  caused  the  fall  of  the  Roman  Republic? 

2.  What  were  the  Constitutions  ? 

Page  55. 

1.     What  was  the  jus  respondendi? 

Page  56. 

1.     What  influence  did  the  Roman  law  writers  exert  upon  the 
development  of  the  law  ? 


250  QUESTIONS. 

2.     Into  what  two  schools  were  they  divided? 

Page  57. 

1.  When  did  the  codification  of  Roman  law  begin? 

2.  What  were  the  earliest  codes  ? 

3.  When  and  by  whose  orders  was  the  Theodosian  code  compiled  ? 

4.  What  influence  was  exerted  by  this  code? 

5.  In  what  code  is  the  highest  culmination  of  Roman  law  found? 

Page  58. 

1.  Who  was  Justinian? 

2.  What  legal  works  were  compiled  under  his  direction? 

Pages  59-65. 
1.    Give  a  brief  outline  of  the  charter  and  influence  of  these  works. 


CHAPTER  IV. 

Page  67. 

1.  By  what  races  was  the  Western  Roman  Empire  overthrown  ? 

2.  What  was  the  character  of  the  conquest  of  the  western  prov- 

inces of  the  Eastern  Continent? 

3.  What  systems  of  law  grew  up  in  these  provinces  after  their 

conquest  ? 

Page  68. 

1.    What  were  the  principal  Romano-Barbarian  codes? 

Page  69. 

1.     In  what  country  and  what  century  did  the  revival   of  the 
study  of  Roman  law  take  place  ? 

Page  70. 

1.    What  is  the  Civil  law? 

Page  71. 

1.  What  is  the  Canon  law? 

2.  In  what  treatises  is  it  found? 

Page  72. 

1.     What  was  the  extent  of  the  jurisdiction  of  the  Canon  law? 


LEGAL  HISTORY.  251 

CHAPTER  V. 

Page  73. 

1.     Where  are  the  beginnings  of  the  English  laws  and  political 

institution  to  be  found  ? 

Page  74. 

1.     What  differences  were  there  between  the  Anglo-Saxon  con- 
quest of  Britain  and  the  Prankish  conquest  of  Gaul? 

Page  75. 

1.  What  was  the  origin  of  the  foreign  law  terms  hi  the  English 

language  ? 

2.  What  is  the  oldest  account  of  Anglo-Saxon  laws  and  customs  ? 

Page  76. 

1.     Give  an  outline  of  the  customs  of  the  early  Germanic  tribes  as 
described  by  Tacitus. 

Pages  77-78. 
1.     Describe  the  Anglo-Saxon  conquest  of  Britain. 

Page  79. 

1.     What  changes  in  the  Anglo-Saxon  laws  and  institutions  were 
occasioned  by  their  conquest  of  Britain  ? 

Page  80. 

1.  What  were  the  four  periods  of  Anglo-Saxon  history  in  Eng- 

land? 

2.  When  did  the  period  of  the  Seven  Kingdoms  begin? 

Page  81. 

1.    What  were  the  seven  Anglo-Saxon  kingdoms? 

Page  82. 

1.    What  three  kingdoms  became  ihe  ruling  powers  in  England  in 
the  seventh  century  ? 

Page  83. 

1.    What  were  the  most  important  characteristics  of  the  history 
of  the  eighth  century  in  England  ? 


252  QUESTIONS. 

2.    What  was  the  principal  work  of  Ine? 

Page  84. 

1.  Who  was  the  greatest  character  in  English  history  during  the 

eighth  century? 

2.  What  was  the  character  of  his  work? 

Page  85. 

1.    Under  what  kingdom  and  king  was  the  first  union  of  Anglo- 
Saxon  England  accomplished  ? 

Page  86. 

1.  What  was  the  character  of  this  union? 

2.  What  foreign  invasion  took  place  hi  the  ninth  century? 

Page  87. 

1.  What  were  the  provisions  of  the  treaty  of  Wedmore? 

2.  What  was  the  principal  work  of  Aelfred  after  the  treaty  of 

Wedmore  ? 

Page  88. 

1.     From  what  sources  did  Aelfred  draw  in  the  compilation  of  his 
laws? 

Page  89. 

1.  What  was  the  character  of  the  first  half  of  the  tenth  century 

hi  English  history? 

2.  Who  was  Dunstan? 

Page  90. 

1.  What  was  the  character  of  his  work? 

2.  What  reign  is  known  as  the  Augustan  period  of  Anglo-Saxon 

history? 

Page  91. 

1.  When  was  the  feudal  system  introduced  into  England? 

2.  What  was  the  character  of  Anglo-Saxon  feudalism? 

Page  92. 

1.     How  did  it  differ  from  Norman  feudalism? 

Page  93. 

1.    Compare  the  Anglo-Saxon  and  the  Danish  conquests  of  Eng- 
land. 


LEGAL  HISTORY.  253 

Page  94. 

1.  What  was  the  character  of  the  reign  of  Canute? 

2.  What  was  his  great  policy? 

Page  95. 

1.     What  was  the  character  of  the  reign  of  Eadward  the  Confessor? 

Page  96. 

1.  Was  the  Anglo-Saxon  kingdom  ever  an  absolute  monarchy? 

2.  What  was  the  origin  of  the  Witenagemote  ? 

Page  97. 

1.  How  was  the  Witenagemote  constituted? 

2.  What  were  its  powers  and  duties? 

Page  98. 

1.  What  two  kinds  of  land  ownership  were  there  among  the 

Anglo-Saxons  ? 

2.  What  was  folc-land? 

3.  What  was  boc-land? 

4.  Were  wills  allowed  among  the  Anglo-Saxons  ? 

5.  What  were  the  regular  courts? 

Page  99*. 

1.    What  were  the  Anglo-Saxon  methods  of  trial? 


CHAPTER  VI. 

Page  101. 

1.  Upon  what  grounds  was  William  of  Normandy's  claim  to  the 

English  throne  based? 

2.  What  was  the  basis  of  Harold's  claim? 

3.  How  was  the  contest  determined? 

Page  102. 

1.     What  changes  in  English  laws  and  government  were  the  im- 
mediate results  of  the  Norman  Conquest  ? 

Page  103. 

1.  How  did  the  feudalism  introduced  into  England  differ  from 

Anglo-Saxon  feudalism? 

2.  How  did  it  differ  from  Norman  feudalism  ? 


254  QUESTIONS. 

Page  104. 

1.  What  was  the  effect  of  the  struggles  between  the  English 

Kings  and  the  barons? 

2.  What  was  Henry  I's  Charter  of  Liberties? 

Page  105. 

1.     What  other  charters  did  Henry  I  grant? 
.2.     What  was  the  effect  of  the  disputed  succession  to  the  throne 
between  Stephen  and  Matilda? 

Page  106. 

1.  To  what  race  did  Henry  II  belong  on  his  father's  side? 

2.  What  was  the  effect  of  this  ancestry? 

3.  What  did  the  reforms  of  Henry  II  consist  of? 

Page  107. 

1.     What  was  the  character  of  the  government  of  John? 

Page  108. 

1.  What  was  Magna  Charta? 

2.  What  has  been  its  influence  and  effect  ? 

Page  109. 

1.     What  were  its  four  principal  provisions? 

Page  110. 

1.     Compare  the  work  of  the  reformers  of  the  thirteenth  century 
with  that  of  those  of  the  seventeenth. 

Page  111. 

1.     What  changes  had  taken  place  in  the  Curia  Regis  prior  to 
the  time  of  Simon  de  Montfort? 

Page  112. 

1.  What  innovations  were  made  by  Simon  de  Montfort  in  the 

Parliament  of  1265? 

2.  When  was  this  new  principle  of  representation  finally  adopted  ? 

3.  What  was  the  general  character  of  the  government  and  re- 

forms of  Edward  I? 


LEGAL   HISTORY.  255 

Page  113. 

1.  When  was  Parliament  divided  into  two  houses? 

2.  What  was  the  character  of  the  reign  of  Edward  II? 

Page  114. 

1.     What  rights  did  the  House  of  Commons  succeed  in  establish- 
ing during  the  reign  of  Edward  III  ? 

Page  115. 

1.  What  was  the  cause  of  the  War  of  the  Roses? 

2.  Upon  what  grounds  were  the  claims  of  the  House  of  Lan- 

caster to  the  English  throne  based? 

3.  Upon  what  grounds  were  the  claims  of  the  House  of  York  to 

the  English  throne  based? 

Pages  116-118. 

1.  What  was  the  result  of  the  war  as  to  the  question  of  the  king- 

ship? 

2.  What  was  the  effect  of  this  war  upon  the  House  of  Lords  ? 

3.  What  was  the  effect  of  this  war  upon  the  House  of  Commons? 

4.  What  was  the  effect  of  this  war  upon  the  liberties  of  England? 

Page  119. 

1.     What  was  the  character  of  the  English  government  during 
the  Tudor  period? 

Page  120. 

1.    What  was  the  position  of  the  House  of  Commons  during  the 
Tudor  period? 

Page  121. 

1.  What  was  the  theory  of  James  I  as  to  the  position  of  the 

King  of  England? 

2.  What  was  the  view  on  this  subject  held  by  the  mass  of  the 

English  people? 

Page  122. 

1.     What  rights  were  claimed  by  the  first  Parliament  of  the  reign 

of  James  I? 

Page  123. 
1.    What  were  the  two  great  weapons  of  the  House  of  Commons 

in  their  contest  against  the  Stuarts? 


256  QUESTIONS. 

Page  124. 

1.  What  position  was  taken  by  the  nobility  of  England  in  the 

contests  during  the  seventeenth  century? 

2.  What  were  the  relations  between  the  King  and  the  courts? 

Page  125. 

1.  How  does  Hallam  sum  up  the  work  of  the  House  of  Commons 

during  the  reign  of  James  I? 

2.  What  was  the  Petition  of  Right? 

3.  What  were  its  provisions? 

Page  126. 

1.     What  was  the  effect  of  the  Petition  of  Right? 

Pages  127-128. 

1.     What  was  the  policy  of  Charles  I  towards  Parliament? 

Page  128. 

1.  What  was  ship  money? 

2.  When  and  from  whom  might  it  legally  be  collected  ? 

3.  When  and  from  whom  did  Charles  I  attempt  to  collect  it? 

4.  Who  resisted  its  payments  in  the  courts? 

5.  What  was  the  decision  in  this  case? 

Page  129. 

1.     What  caused  the  summoning  of  the  Long  Parliament? 

Page  130. 

1.     What  abuses  were  abolished  by  the  Long  Parliament  during 
the  first  few  months  of  its  existence? 

Page  131. 

1.  What  caused  the  division  among  the  members  of  the  Long 

Parliament  ? 

2.  What  was  the  "Great  Remonstrance"  ? 

Page  132. 

1.     What  causes  led  up  to  the  war  between  Charles  I  and  Parlia- 
ment? 


LEGAL  HISTORY.  267 

Page  133. 

1.  What  was  the  result  of  the  war? 

2.  What  was  the  position  of  Cromwell  and  his  army  after  the 

close  of  the  war? 

Page  134. 

1.     With  what  difficulties  was  Cromwell  confronted? 

Page  135. 

1.     What  was  the  cause  of  the  danger  to  English  liberty  during 
the  reign  of  Charles  II? 

Page  136. 

1.     What  was  the  character  of  the  government  of  Charles  II? 

Page  137. 

1.  What  was  the  character  of  the  government  of  James  II? 

2.  How  was  this  reign  terminated? 

Page  138. 

1.  What  was  the  character  of  the  history  of  Continental  Europe 

during  the  seventeenth  century? 

2.  What  was  the  Bill  of  Rights? 

Page  139. 

1.  What  were  the  principal  provisions  of  the  Bill  of  Rights? 

2.  What  was  the  result  of  the  Bill  of  Rights? 

Page  140. 

1.     What  was  the  attitude  of  William  III  toward  English  politics? 

Page  141. 

1.     What  is  the  English  ministry  system? 

Page  142. 

1.  What  events  were  connected  with  the  accession  of  the  House 

of   Hanover? 

2.  What  was  the  character  of  the  reign  of  the  first  two  rulers  of 

this  house? 

3.  Who  were  the  two  great  prime  ministers  during  this  period? 

VoL  1—17. 


258  QUESTIONS. 

Page  143. 

1.  In  what  respects  did  George  III  differ  in  his  policy  and  char- 

acter from  that  of  his  two  predecessors? 

2.  What  effect  did  the  result  of  the  American  Revolution  have 

upon  the  English  government  ? 


CHAPTER  VII. 
Page  145. 

1.  What  ultimate  effect  did  the  Norman  Conquest  have  upon 

English  law? 

2.  What  changes  hi  the  law  of  England  were  made  by  William 

the  Conqueror? 

Page  146. 

1.    Describe  the  Feudal  system. 

Page  147. 

1.     What  is  tenure? 

Pages  148=150. 

1.     Name  and  describe  the  principal  Feudal  tenures. 

Page  151. 
1.     What  were  the  incidents  of  tenure  by  knight  service? 

Page  152. 

1.  What  causes  led  to  the  overthrow  of  the  Feudal  system? 

2.  What  statute  entirely  abolished  it  in  England  ? 

Page  153. 

1.  What  did  the  Statute  of  De  Donis  provide? 

2.  What  did  the  Statute  of  Quia  Emptores  provide? 

3.  What  was  the  general  character  of  the  law  relative  to  procedure 

and  evidence  during  the  century  which  followed  the  Norman 
Conquest  ? 

Page  154. 

1.     What  were  the  original  writs? 

Page  155. 
1.    Name  some  of  the  most  important  of  the  ancient  original  writs. 


LEGAL  HISTORY.  259 

Page  156. 

1.     What  causes  led  to  the  passage  of  the  Statute  of  Westmin- 
ster II? 

Page  157. 

1.  What  were  the  provisions  of  this  Statute? 

2.  What  was  its  effect  ? 

Page  158. 
1.     What  was  outlawry? 

Page  159. 

1.  What  was  the  most  important  advance  during  the  twelfth  and 

thirteenth  centuries  in  the  field  of  criminal  law? 

2.  What  was  the  origin  of  trial  by  jury? 

Page  160. 

1.  What  were  the  laws  governing  marriages  in  early  English  law? 

2.  What  is  a  Commcn  law  marriage  ? 

Page  161. 

1.  What  two  forms  of  divorce  existed  at  Common  law? 

2.  What  was  the  divorce  a  vinculo  matrimonii? 

3.  What  was  the  divorce  a  mensa  et  thora  ? 

4.  What  was  the  Common  law  rule  as  to  bastards  ? 

5.  What  position  does  Contract  law  occupy  in  early  Teutonic 

systems  ? 

Page  162. 

1.     What  causes  brought  about  the  development  of  the  law  of 
Contracts  in  the  twelfth  century  ? 

Page  163. 

1.     Describe  the  contest  in  England  between  the  Common  law 
and  the  Civil  and  Canon  law. 

Page  164. 

1.     What  was  the  Constitution  of  Clarendon? 

Page  165. 

1.     What  was  the  Statute  of  Uses? 


260  QUESTIONS. 

Page  166. 

1.  What  was  the  Statute  of  Wills? 

2.  What  was  the  Statute  of  Charitable  Uses  ? 

3.  What  was  the  Habeas  Corpus  Act  ? 


CHAPTER  VIII. 

Page  167. 

1.     What  causes  led  to  the  birth  of  Equity  Jurisprudence? 

Page  168. 
1.  What  causes  brought  about  the  rigidity  of  the  Common  law? 

Page  169. 
1.  Describe  the  beginnings  of  Equity  Jurisprudence. 

Page  170. 

1.  What  was  the  position  of  Equity  Jurisprudence  during  the 
reign  of  Richard  II? 

Page  171. 

1.  Who  was  John  de  Waltham  and  what  part  did  he  play  in  the 
development  of  Equity  Jurisprudence? 

Page  172. 

1.     What  were  the  early  causes  for  going  into  the  Courts  of  Equity  ? 

Pages  173^177. 
1.     Describe  the  general  character  of  early  Bills  hi  Equity. 

Page  178. 
1.  When  did  Equity  begin  to  take  jurisdiction  in  cases  of  fraud? 

Pages  180-181. 

1.  Describe  the  contest  between  the  Equity  Courts  and  the 
Common  law  Courts  over  the  question  of  the  jurisdiction  of 
the  former. 

Page  182. 

1.  What  are  uses? 

2.  When  and  for  what  purpose  were  they  introduced  into  Eng- 

land? 


LEGAL  HISTORY.  261 


Page  183. 

1.     What  causea  led  to  their  increased  use? 

Page  184. 

1.  What  was  the  Statute  of  Uses? 

2.  With  what  purpose  was  it  passed  ? 

3.  What  was  its  effect? 


CHAPTER  IX. 

Page  185. 

1.  What  effect  did  the  date  of  their  settlement  have  upon  the 
character  of  the  English  colonies  in  America? 

Page  186. 

1.  What  was  the  character  of  the  history  of  the  seventeenth 
century  in  England? 

Pages  187-193. 

1.  What  was  the  basis,  as  explained  in  the  decision  of  Johnson  vs. 
Mclntosh,  of  the  claims  to  territory  hi  America  by  the 
various  European  governments? 

Page  194. 

1.  What  three  forms  of  government  existed  among  the  English 

colonies  in  America? 

2.  What  was  the  character  of  the  government  of  the  Charter 

colonies  ? 

Page  195. 

1.  What  was  the  character  of  the  government  of  the  proprietory 

colonies  ? 

2.  What  was  the  character  of  the  government  of  the  royal  prov- 

inces? 

Page  196. 

1.     Describe  the  colonial  government  and  history  of  Virginia. 

Pages  197-200. 

1.  Describe  the  colonial  government  and  history  of  Massachu- 
setts. 


262  QUESTIONS. 

Page  201. 

1.     Describe  the  colonial  government  and  history  of  Connecticut. 

Page  202. 

1.    Describe  the  colonial  government  and  history  of  Rhode  Island. 

Page  203. 

1.     Describe  the  colonial  government  and  history  of  New  Hamp- 
shire. 

Page  204. 

1.    Describe  the  colonial  government  and  history  of  New  York. 

Page  205. 

1.    Describe  the  colonial  government  and  history  of  New  Jersey. 

Page  206. 

1.  Describe  the  colonial  government  and  history  of  Pennsylvania. 

2.  Describe  the  colonial  government  and  history  of  Delaware. 

Page  207. 

1.     Describe  the  colonial  government  and  history  of  Maryland. 

Page  208. 

1.  Describe   the    colonial    government    and    history    of    North 

Carolina. 

2.  Describe   the    colonial    government    and    history    of    South 

Carolina. 

Page  209. 

1.  Describe  the  colonial  government  and  history  of  Georgia. 

2.  What  were  the  causes  of  the  Revolutionary  War? 

Page  210. 

1.    What  was  the  real  character  of  this  contest  ? 

Page  211. 

1.  What  was  the  Stamp  Act  ? 

2.  What  was  the  result  of  its  passage? 

3.  What  was  the  Continental  Congress? 


LEGAL  HISTORY.  263 

Page  212. 

1.  What  were  the  Articles  of  Confederation? 

2.  When  were  they  adpoted  ? 

Page  213. 

1.     What  was  the  character  of  the  government  created  by  the 
Articles  of  Confederation  ? 

Pages  214-217. 

1.     What  judicial  powers  did  the  United  States  Government 
possess,  under  the  Articles  of  Confederation? 

Page  218. 

1.     What  were  the  causes  leading  up  to  the  Constitutional  Con- 
vention ? 

Page  219. 

1.     What  was  the  Annapolis  Convention? 


CHAPTER  X. 

Page  221. 

1.  When  did  the  Constitutional  Convention  meet? 

2.  What  was  the  general  character  of  its  members? 

Page  222. 

1.     What  was  the  principal  source  from  which  the  provisions  of 
the  Federal  Constitution  were  drawn? 

Page  223. 

1.     What  were  some  of  the  other  sources  drawn  upon? 

Page  224. 
1.     What  was  the  Virginia  Plan? 

Pages  225-226. 
1.     What  were  its  principal  provisions  ? 

Page  227. 
1.     What  was  the  New  Jersey  Plan? 


264  QUESTIONS. 

Pages  228-229. 
1.     What  were  its  principal  provisions? 

Pages  230-233. 

1.     What  was  the  Connecticut  Compromise,  its  causes  and  effects  ? 

Page  234. 

1.     What  was  the  second  great  compromise  in  the  Constitutional 
Convention  ? 

Page  235. 

1.  What  were  the  provisions  of  the  third  great  compromise  in  the 

Constitutional  Convention  ? 

2.  How  were  the  votes  necessary  for  its  passage  secured? 

Page  236. 

1.     Describe  the  adoption  of  the  Constitution. 

Page  237. 

1.  What  was  the  cause  which  led  to  the  adoption  of  the  first 

amendment  ? 

2.  What  was  the  cause  which  led  to  the  adoption  of  the  eleventh 

amendment  ? 

3.  What  was  the  cause  which  led  to  the  adoption  of  the  twelfth 

amendment  ? 

Page  238. 

1.    What  was  the  first  great  dividing  line  between  political  parties  ? 

Page  239. 
1.  What  were  the  Virginia  Resolutions  of  1798  and  1799? 

Page  240. 
1.  What  were  the  Kentucky  Resolutions  of  1798  and  1799? 

Page  241. 

1.  What  influence  did  Chief  Justice  Marshall  have  upon  the 

constitutional  history  of  the  United  States? 

2.  Describe  the  recent  Constitutional  history  of  the  United  States. 


APPENDIX  A. 

THE  CODE  OF  HAMMURABI. 

(The  Code  of  Hammurabi,  the  earliest  known  Code,  consists  of  282 
sections,  certain  selections  from  which  follow.) 

1.  If  a  man  weaves  a  spell  about  another  man  (i.  e.  accuses  him) 
and  throws  a  curse  on  him,  and  cannot  prove  it,  the  one  who  wove  the  spell 
shall  be  put  to  death. 

2.  If  a  man  weaves  a  spell  about  another  man,  and  has  not  proved  it, 
he  on  whom  suspicion  was  thrown  shall  go  to  the  river,  shall  plunge  into 
the  river.     If  the  river  seizes  hold  of  him,  he  who  wove  the  spell  shall  take 
his  house.     If  the  river  shows  him  to  be  innocent,  and  he  is  uninjured,  he 
who  threw  suspicion  on  hirn^ shall  be  put  to  death.      He  who  plunged  into 
the  river  shall  take  the  house  of  him  who  wove  the  spell  on  him. 

3.  If  a  man  has  accused  the  witnesses  in  a  lawsuit  of  malice  and 
has  not  proved  what  he  said,  if  the  suit  was  one  of  life  (and  death),  that 
man  shall  be  put  to  death. 

4.  If  he  has  sent  corn  and  silver  to  the  witnesses,  he  shall  bear  the 
penalty  of  the  suit. 

5.  If  a  judge  has  delivered  a  sentence,  has  made  a  decision  and  fixed 
it  in  writing,  and  if  afterwards  he  has  annulled  his  sentence,  that  judge  for 
having  altered  his  decision  shall  be  brought  to  judgment;    for  the  penalty 
inflicted  in  his  decision,  twelve-fold  shall  he  pay  it,  and  publicly  shall  they 
remove  him  from  his  judgment  seat.     He  shall  not  come  back  and  shall  not 
sit  in  judgment  with  the  other  judges. 

6.  If  a  man  has  stolen  property  from  the  god  or  palace,  that  man 
shall  be  put  to  death. 

7.  If  a  man  has  bout  or  received  in  deposit,  silver,  gold,  a  man  or 
woman  slave,  an  ox,  a  sheep,  an  ass,  or  whatever  it  may  be,  from  the  hands 
of  a  son  of  another  or  a  slave  or  another,  without  witness  or  contract,  that 
man  shall  be  put  to  death  as  a  thief. 

8.  If  anyone  has  stolen  an  ox,  a  sheep,  an  ass,  a  pig,  or  a  boat,  if  it 
belongs  to  the  god  or  to  the  palace,  he  shall  return  it  thirty-fold;  if  it  belongs 
to  a  noble  he  shall  return  it  ten-fold;   if  the  thief  has  nothing  with  which  to 
repay,  he  shall  be  put  to  death. 

9.  If  anyone  who  has  lost  something,  finds  his  something  that  was  lost 
in  the  hand  (possession)  of  another;  if  the  man  in  whose  hand  the  lost  object 
was  found  says:    "A  trader  sold  it  to  me,  before  witnesses  I  paid  for  it," 
and  if  the  owner  of  the  lost  object  says:   "Witnesses  who  know  my  lost  object 
I  will  bring,"  then  shall  the   purchaser  bring  the  seller  who  sold  it  to  him, 
and  the  witnesses  before  whom  he  bought  it,  and  the  owner  of  the  lost  object 
shall  bring  witnesses  who  know  his  lost  goods;  the  judge  shall  consider  their 
words,  and  the  witnesses  before  whom  the  purchase  was  made,  and  the  wit- 
nesses who  know  the  object  shall  bear  testimony  before  God.    The  seller 

366 


266  APPENDIX  A. 

is  a  thief  and  shall  be  put  to  death.    The  owner  of  the  lost  object  shall  get 
back  the  money  he  paid  from  the  house  of  the  seller. 

10.  If  the  buyer  does  not  bring  the  seller  who  sold  it  to  him  and  the 
witnesses  before  whom  he  bought  it;   if  the  owner  of  the  lost  object  brings 
the  witnesses  who  know  his  object,  the  buyer  is  a  thief  and  shall  be  killed; 
the  owner  shall  get  his  lost  object. 

11.  If  the  owner  of  the  lost  object  does  not  bring  his  expert  witnesses, 
then  he  is  a  miscreant;  he  has  accused  falsely,  he  shall  die. 

12.  If  the  seller  has  gone  to  his  fate,  the  buyer  shall  receive  from  the 
house  of  the  seller  five  times  the  costs  of  the  suit. 

13.  If  that  man  has  not  his  witnesses  at  hand,  the  judge  shall  give 
him  a  respite  of  six  months.     If  in  six  months  his  witnesses  do  not  come, 
that  man  is  a  miscreant  and  shall  bear  the  costs  of  the  suit. 

14.  If  anyone  steals  the  minor  son  of  a  man,  he  shall  be  put  to  death. 

15.  If  anyone  has  caused  a  male  slave  of  the  palace  or  a  female  slave 
of  the  palace,  the  male  slave  of  a  noble  or  the  female  slave  of  a  noble,  to  go 
out  of  the  gate,  he  shall  be  put  to  death. 

16.  If  anyone  harbours  in  his  house  a  runaway  male  or  female  slave 
from  the  palace  or  the  house  of  a  noble,  and  does  not  bring  them  out  at  the 
command  of  the  majordomo,  the  master  of  the  house  shall  be  put  to  death. 

17.  If  anyone  has  caught  a  runaway  male  or  female  slave  in  the  field, 
and  brings  him  back  to  his  master,  the  master  of  the  slave  shall  give  him 
two  shekels  of  silver. 

18.  If  that  slave  will  not  name  his  owner,  to  the  palace  he  shall  bring 
him;  his  case  shall  be  investigated ;  to  his  owner  one  shall  bring  him. 

19.  If  he  retains  that  slave  in  his  house,  and  if,  later,  the  slave  is 
found  in  his  hands,  that  man  shall  be  put  to  death. 

20.  If  the  slave  escapes  from  the  house  of  the  one  who  caught  him, 
that  man  shall  swear  to  the  owner  of  the  slave  in  the  name  of  God  and  he 
shall  be  quit. 

21.  If  anyone  has  broken  a  hole  in  a  house,  in  front  of  that  hole  one 
shall  kill  him  and  bury  him. 

22.  If  anyone  has  committed  a  robbery  and  is  caught,  he  shall  be 
killed. 

23.  If  the  robber  is  not  caught,  the  man  who  has  been  robbed  shall 
make  claim  before  God  to  everything  stolen  from  him,  and  the  town  and  its 
governor  within  the  territory  and  limits  of  which  the  robbery  took  place 
shall  give  back  to  him  everything  he  has  lost. 

24.  If  it  was  a  life,  the  city  and  governor  shall  pay  one  mina  of  silver 
to  his  people. 

25.  If  a  fire  breaks  out  in  the  house  of  a  man,  and  some  one  who  has 
gone  thither  to  put  it  out  raise  his  eyes  to  the  goods  of  the  master  of  the  house 
and  take  the  goods  of  the  master  of  the  house,  that  man  shall  be  thrown 
into  that  fire. 

42.  If  anyone  has  taken  a  field  to  cultivate,  and  has  not  made  grain 
to  grow  in  the  field,  he  shall  be  charged  with  not  having  done  his  duty  in  the 
field;  he  shall  give  grain  equal  to  that  yielded  by  the  neighboring  field  to 
the  owner  of  the  field. 


THE   CODE   OF   HAMMURABI.  267 

43.  If  he  has  not  tilled  the  field,  has  let  it  lie,  he  shall  give  to  the 
owner  of  the  field  grain  equal  to  the  yield  of  the  neighbouring  field;    and 
the  field  which  he  left  untilled,  he  shall  harrow,  sow,  and  return  to  its  owner. 

44.  If  any  one  has  hired  an  unreclaimed  field  for  three  years,  to  open 
(cultivate)  it,  but  has  neglected  it,  has  not  opened  the  field,  in  the  fourth  year 
he  shall  harrow  the  field,  hoe  it,  and  plant  it  and  return  it  to  the  owner  of  the 
field,  and  10  GUR  of  grain  for  every  10  GAN  he  shall  measure  out. 

45.  If  a  man  has  rented   his  field  to  a  cultivator  for   the   produce 
and  he  has  received  his  produce,  and  then  a  storm  has  come,  and  destroyed 
the  harvest,  the  loss  is  the  cultivator's. 

46.  If  he  has  not  received  the  produce  from  his  field,  but  has  given 
his  field  on  a  half  or  a  third  share,  the  grain  which  is  in  the  field  shall  the 
owner  and  cultivator  share  according  to  their  contract. 

47.  If  the  cultivator,  because  in  the  first  year  he  did  not  obtain 
his  living  (?),  had  the  field  cultivated  by  another,  the  owner  of  the  field  shall 
not  blame  this  cultivator,  his  field  has  been  cultivated ;  at  the  time  of  harvest 
he  shall  receive  grain  according  to  his  contract. 

48.  If  a  man  has  a  debt  and  a  storm  has  devastated  his  field,  and 
carried  off  the  harvest,  or  if  the  grain  has  not  grown  on  account  of  lack  of 
water,  in  that  year  he  shall  give  no  grain  to  the  creditor;   he  shall  soak  his 
tablet  (in  water,  i.  e.,  alter  it),  and  shall  pay  no  interest  for  that  year. 

49.  If  anyone  has  borrowed  money  from  a  merchant  and  given  a 
ploughed  field  sown  with  grain  or  sesame  to  the  merchant  and  said  to  him: 
"Cultivate  the  field,  harvest  and  take  the  grain  or  sesame  which  is  there- 
on;" when  the  cultivator  has  raised  the  grain  or  sesame  in  the  field,  at  the 
time  of  harvest  the  owner  of  the  field  shall  take  the  grain  or  sesame  which  is 
in  the  field,  and  shall  give  to  the  merchant  grain  in  return  for  the  money  with 
its  interest,  which  he  took  from  the  merchant,  and  for  the  support  of  the 
cultivator. 

50.  If  he  has  given  him  an  (already)  cultivated  field  (of  grain)  or  a 
field  of  sesame,  the  grain  or  sesame  which  is  in  the  field  shall  the  owner  of  the 
field  receive;  money  and  interest  to  the  merchant  he  shall  give. 

51.  If  he  has  no  money  with  which  to  pay  him,  Re  shall  give  to  the 
merchant  sesame  equal  to  the  value  of  the  money  which  he  received  from  the 
merchant,  with  interest  according  to  the  king's  tariff. 

52.  If  the  cultivator  has  not  raised  grain  or  sesame  in  the  field,  his 
contract  is  not  altered. 

53.  If  anyone  is  too  lazy  to  keep  his  dikes  in  order  and  fails  to  do  so, 
and  if  a  breach  is  made  in  his  dike  and  the  fields  have  been  flooded  with 
water,  the  man  in  whose  dike  the  breach  was  opened  shall  replace  the  grain 
which  he  has  destroyed. 

54.  If  he  is  not  able  to  replace  the  grain,  he  and  his  property  shall 
be  sold,  and  the  people  whose  grain  the  water  carried  off  shall  share  (the 
proceeds). 

55.  If  anyone  opens  his  irrigation  canals  to  let  in  water,  but  is  careless 
and  the  water  floods  the  field  of  his  neighbour,  he  shall  measure  out  grain  to 
the  latter  in  proportion  to  the  yield  of  the  neighbouring  field. 

66.    If  any  one  lets  in  the  water  and  it  floods  the  growth  of  his  neigh- 


268  APPENDIX   A. 

hour's  field,  he  shall  measure  out  to  him  10  GUR  of  grain  for  every  10  GAN 
(of  land). 

109.  If  a  wine  merchant  when  rebels  meet  in  her  house  does  not  arrest 
them  and  take  them  to  the  palace,  that  wine  merchant  shall  be  put  to  death. 

110.  If  a  votary  who  does  not  live  in  the  temple  shall  open  a  tavern 
or  enter  a  tavern  to  drink,  she  shall  be  burned. 

116.  If  the  confined  man  has  died  in  the  house  of  his  confinement  as 
a  result  of  blows  or  ill-treatment,  the  owner  of  the  prisoner  shall  call  his 
merchant  to  account.     If  the  man  was  free-born,  his  son  (of  the  merchant) 
one  shall  kill;    if  he  was  a  slave,  he  shall  pay  one-third  of  a  mina  of  silver, 
and  shall  lose  possession  of  everything  which  he  gave  him. 

117.  If  anyone  has  an  indebtedness,  sells  wife,  son,  or  daughter, 
for  gold  or  gives  them  into  bondage,  three  years  in  the  house  of  their  buyer 
or  their  taskmaster  shall  they  labour;    in  the  fourth  year  shall  he  let  them 
go  free. 

118.  If  he  gives  away  a  man  or  woman  slave  into  servitude,  and  if  the 
merchant  passes  them  on,  sells  them  for  money,  there  is  no  protest. 

119.  If  anyone  has  contracted  a  debt  and  sells  a  slave  who  has  borne 
him  children,  the  money  which  the  merchant  paid,  the  owner  of  the  slave 
shall  pay  back  to  him  and  buy  back  his  slave. 

120.  If  anyone  has  stored  his  grain  in  the  house  of  another  for  keeping 
and  a  disaster  has  happened  in  the  granary,  or  the  owner  of  the  house  has 
opened  the  granary  and  taken  out  the  grain,  or  if  he  disputes  as  to  the  whole 
amount  which  was  deposited  with  him,  the  owner  of  the  grain  shall  pursue 
(claim)  his  grain  before  God,  and  the  master  of  the  house  shall  return  un- 
diminished  to  its  owner  the  grain  which  he  took. 

127.  If  anyone  has  caused  a  finger  to  be  pointed  at  a  votary  or  the 
wife  of  a  man  and  has  not  proved  (his  accusation  against)  that  man,  one  shall 
bring  him  before  the  judge  and  brand  his  forehead. 

128.  If  anyone  has  married  a  wife  but  has  not  drawn  up  a  contract 
with  her,  that  woman  is  not  a  wife. 

141.  If  a  man's  wife,  who  lives  in  his  house,  sets  her  face  to  go  out, 
causes  discord,  wastes  her  house,  neglects  her  husband,  to  justice  one  shall 
bring  her.  If  her  husband  says  "I  repudiate  her,"  he  shall  let  her  go  her 
way,  he  shall  give  her  nothing  for  her  divorce.  If  her  husband  says,  "I  do  not 
repudiate  her,"  her  husband  may  take  another  wife;  that  (first)  wife  shall 
stay  in  the  house  of  her  husband  as  a  slave. 

148.  If  anyone  has  taken  a  wife  and  a  sickness  has  seized  her,  and 
if  his  face  is  set  towards  taking  another  wife,  he  may  take  (her),  but  his  wife 
whom  the  sickness  has  seized  he  may  not  repudiate  her,  she  shall  live  in  the 
house  he  has  built,  and  as  long  as  she  lives  he  shall  support  her. 

149.  If  that  woman  does  not  desire  to  live  in  the  house  of  her  husband, 
he  shall  give  her  the  marriage  portion  she  brought  from  her  father's  house, 
and  she  shall  go. 

150.  If  anyone  has  given  his  wife,  field,  garden,  house,  or  property, 
and  has  left  her  a  sealed  tablet;  after  (the  death  of)  her  husband,  her  children 
shall  contest  nothing  with  her.     The  mother  shall  leave  her  inheritance  to  the 
child  whom  she  loves;  to  a  brother  she  shall  not  give  it. 


THE  CODE  OF  HAMMURABI.  269 

163.  If  anyone  has  married  a  wife  and  she  has  borne  him  no  children; 
if  that  woman  has  gone  to  her  fate,  if  the  dowry  which  that  man  took  from 
the  house  of  his  father-in-law  his  father-in-law  has  returned;  on  the  marriage 
portion  of  that  woman  the  husband  shall  make  no  claim,  it  belongs  to  the 
house  of  her  father. 

164.  If  his  father-in-law  has  not  returned  him  the  dowry,  from  her 
marriage  portion  he  shall  deduct  all  her  dowry;    and  her  marriage  portion 
he  shall  return  to  the  house  of  her  father. 

165.  If  any  man  to  his  son,  the  first  in  his  eyes,  has  given  a  field, 
garden,  and  house,  and  has  written  a  tablet  for  him;  if  afterwards  the  father 
has  gone  to  his  fate,  when  the  brothers  make  a  division,  the  present  which 
the  father  gave  him  he  shall  keep;  in  addition,  the  goods  of  their  father's 
house  in  equal  parts  they  shall  share  (with  him). 

166.  If  a  man  has  taken  wives  for  his  sons,  for  his  little  son  a  wife 
has  not  taken,  if  afterwards  the  father  has  gone  to  his  fate,  when  the  brothers 
divide  the  goods  of  their  father's  house,  to  their  little  brother,  who  has  not  taken 
a  wife,  besides  his  portion,  money  for  a  dowry  they  shall  give  him,  and  a 
wife  they  shall  cause  him  to  take. 

167.  If  a  man  has  married  a  woman,  if  she  has  borne  him  children, 
if  that  woman  has  gone  to  her  fate;  if  afterwards  he  has  taken  another  wife, 
who  has  borne  him  children,  and  if  afterwards  the  father  has  gone  to  his 
fate;    the  children  shall  not  divide  the  property  according  to  their  mothers; 
they  shall  take  the  marriage  portion  of  their  mother;  their  father's  property 
they  shall  share  in  equal  parts. 

168.  If  anyone  has  set  his  face  to  cut  off  his  son  and  says  to  the 
judge,  "I  cut  off  my  son,"  the  judge  shall  inquire  into  the  matter;   and  if 
the  son  has  no  grievous  offence,  which  would  lead  to  being  cut  off  from  sonship, 
the  father  shall  not  cut  off  his  son  from  sonship. 

169.  If  he  has  a  grievous  crime  against  his  father  to  the  extent  of 
cutting  him  off  from  sonship,  for  the  first  time  he  (the  father)  shall  turn 
away  his  face;   but  if  he  commit  a  grievous  crime  a  second  time,  the  father 
shall  cut  off  his  son  from  sonship. 

170.  If  to  a  man  his  wife  has  borne  children,  and  if  his  servant  has 
borne  him  children;    if  the  father  during  his  life  has  said:    "You  are  my 
children,' '  to  the  children  which  his  servant  bore  him,  and  has  counted  them 
with  his  wife's  children;    afterwards  if  that  father  has  gone  to  his  fate,  the 
goods  of  the  father's  house  shall  the  children  of  the  wife  and  the  children 
of  the  servant  share  on  equal  terms.     In  the  division  the  children  of  the 
wife  shall  choose  (first)  and  take. 

171.  And  if  the  father,  during  his  life  to  the  children  which  his  slave 
bore  him  has  not  said,  "You  are  my  children,"  and  afterwards  when  the 
father  has  gone  to  his  fate,  the  property  of  the  father's  house  the  children 
of  the  servant  shall  not  share  with  the  children  of  the  wife.     The  freedom 
of  the  servant  and  her  children  shall  be  assured.     The  children  of  the  wife 
cannot  claim  the  children  of  the  servant  for  servitude.     The  wife  shall  take 
her  marriage  portion  and  the  gift  which  her  husband  gave  her  and  wrote  on  a 
tablet  for  her,  and  shall  remain  in  the  house  of  her  husband.     As  long  as 
she  lives  she  shall  keep  them,  and  for  money  she  shall  not  give  them;   after 
her  they  belong  to  her  children. 


270  APPENDIX  A. 

172.  If  her  husband  has  not  given  her  a  gift,  her  marriage  portion  she 
shall  receive  entire;    and  of  the  property  of  her  husband's  house,  a  portion 
like  a  son  she  shall  take.     If  her  children  force  her  to  go  out  of  the  house, 
the  judge  shall  inquire  into  the  matter,  and  if  a  fault  is  imputed  to  the  children, 
that  woman  shall  not  go  out  of  the  house  of  her  husband.     If  that  woman  has 
set  her  face  against  the  gift  which  her  husband  gave  her  she  shall  leave  it  to 
her  children.     The  marriage  portion  which  came  from  her  father's  house 
she  shall  keep,  and  the  husband  of  her  choice  she  shall  take. 

173.  If  that  woman,  there  where  she  has  entered,  to  her  second  hus- 
band has  borne  children,  and  if  afterward  that  woman  dies,  her  marriage 
portion  shall  her  earlier  and  her  later  children  divide  between  them. 

174.  If  to  her  second  husband  she  has  borne  no  children,  her  marriage 
portion  shall  the  children  of  her  first  husband  take. 

175.  If  a  free-born  woman  has  married  a  palace  slave  or  the  slave  of 
a  noble,  and  has  borne  children;  the  owner  of  the  slave  on  the  children  of  the 
free-born  woman  shall  make  no  claim  for  servitude. 

176.  And  if  a  free-born  woman  marries  a  slave  of  the  palace  or  the 
slave  of  a  noble,  and  if  when  he  married  her  she  entered  the  house  of  the 
palace  slave  or  of  the  nobleman's  slave  with  a  marriage  portion  from  the 
house  of  her  father,  and  from  the  time  that  they  set  up  their  house  together 
have  acquired  property;    if  afterward  either  the  slave  of  the  palace  or  the 
slave  of  the  nobleman  has  gone  to  his  fate,  the  free-born  woman  shall  take 
her  marriage  portion,  and  whatever  her  husband  and  she  since  they  began 
housekeeping  have  made,  into  two  parts  they  shall  divide;  one-half  the  owner 
of  the  slave  shall  take,  one-half  the  free-born  woman  shall  take  for  her  children. 

176a.  If  the  free-born  woman  had  no  marriage  portion,  everything 
which  her  husband  and  she  had  acquired  since  they  kept  house  together, 
into  two  parts  they  shall  divide.  The  owner  of  the  slave  one-half  shall  take; 
one-half  shall  the  free-born  woman  take  for  her  children. 

177.  If  a  widow  whose  children  are  still  young,  has  set  her  face  to 
enter  the  house  of  another  without  consulting  the  judge,  she  shall  not  enter. 
When  she  enters  another  house  the  judge  shall  inquire  into  that  which  was 
left  from  the  house  of  her  former  husband;    and  the  goods  of  her  former 
husband's  house  to  her  later  husband  and  to  that  woman  (herself)  one  shall 
confide,  and  a  tablet  shall  make  them  deliver.     They  shall  keep  the  house 
and  bring  up  the  little  ones;  no  utensil  shall  they  give  for  money.     The  buyer 
who  shall  buy  a  utensil  belonging  to  the  children  of  the  widow,  shall  lose  his 
money;  the  property  shall  return  to  its  owner. 

178.  If  a  votary  or  a  vowed  woman  to  whom  her  father  has  given  a 
marriage  portion,  a  tablet  has  written,  and  on  the  tablet  he  wrote  for  her 
did  not  write,  "After  her  she  may  give  to  whom  she  pleases,"  has  not  permitted 
her  all  the  wish  of  her  heart;  afterwards  when  the  father  has  gone  to  his  fate, 
her  field  and  garden  shall  her  brothers  take,  and  according  to  the  value  of 
her  portion  they  shall  give  her  grain,  oil,  and  wool,  and  her  heart  they  shall 
content.     If  her  brothers  have  not  given  her  grain,  oil,  and  wool  according 
to  the  value  of  her  portion,  and  have  not  contented  her  heart,  she  shall  give 
her  field  and  garden  to  a  cultivator  who  is  pleasing  to  her,  and  her  cultivator 
shall  sustain  her.    The  field,  garden,  and  whatever  her  father  gave  her  she 


THE   CODE   OF   HAMMURABI.  271 

shall  keep  as  long  as  she  lives,  but  for  money  she  shall  not  give  it,  to  another 
she  shall  not  part  with  it;   her  sonship  (inheritance)  belongs  to  her  brother. 

179.  If  a  votary  of  a  vowed  woman  to  whom  her  father  has  given  a 
marriage  portion,  and  has  written  her  a  tablet,  and  on  the  tablet  which  he 
wrote  her  has  written,  "property  where  (to  whom)  it  seems  good  to  her  to  give 
(let  her  give),"  has  allowed  her  the  fulness  of  her  heart's  desire:  afterwards 
when  the  father  has  gone  to  his  fate,  her  property  after  her  death  to  whomever 
it  pleases  her  she  shall  give;  her  brothers  shall  not  strive  with  her. 

180.  If  a  father  to  his  daughter,  a  bride  or  vowed  woman,  a  marriage 
portion  has  not  given;   after  the  father  has  gone  to  his  fate,  she  shall  receive 
of  the  possession  of  the  father's  house  a  share  like  one  son.     As  long  as  she 
lives  she  shall  keep  it.    Her  property  after  her  death  shall  belong  to  her  brothers. 

181.  If  a  father  has  vowed  to  God  a  hierodule  or  a  temple  virgin,  and 
has  gone  to  his  fate,  she  shall  have  a  share  in  the  possession  of  the  father's 
house  equal  to  one-third  her  portion  as  one  of  his  children.     As  long  as  she 
lives  she  shall  keep  it.     Her  property  after  her  death  shall  belong  to  her 
brothers. 

182.  If  a  father  to  his  daughter,  a  votary  of  Marduk  of  Babylon,  has 
not  given  a  marriage  portion,  a  tablet  has  not  written;   after  the  father  has 
gone  to  his  fate  she  shall  share  with  her  brothers  in  the  possession  of  her 
father's  house;   a  third  of  her  share  as  his  child  (she  shall  receive).    Control 
over  it  shall  not  go  from  her.     The  votary  of  Marduk  shall  give  her  property 
after  her  death  to  whomever  it  pleases  her. 

183.  If  a  father  to  his  daughter  by  a  concubine  has  given  a  marriage 
portion,  and  has  given  her  to  a  husband  and  has  written  her  a  tablet;   after 
the  father  has  gone  to  his  fate,  in  the  goods  of  the  father's  house,  she  shall 
not  share. 

184.  If  a  man  to  his  daughter  by  a  concubine  a  marriage  portion  has 
not  provided,  to  a  husband  has  not  given  her;  after  the  father  has  gone  to  his 
fate,  her  brothers  shall  provide  her  a  marriage  portion  according  to  the  value 
of  the  father's  house,  and  to  a  husband  they  shall  give  her. 

185.  If  a  man  has  taken  a  small  child  as  a  son  in  his  own  name  and  has 
brought  him  up,  that  foster  child  shall  not  be  reclaimed. 

186.  If  a  man  has  taken  a  small  child  for  his  son,  and  if  when  he  took 
him  his  father  and  his  mother  he  offended,  that  foster  child  shall  return 
to  the  house  of  his  father. 

187.  The  son  of  a  familiar  slave  in  the  palace  service,  or  the  son 
of  a  vowed  woman,  cannot  be  reclaimed. 

188.  If  an  artisan   has  taken  a  child  to  bring  up,  and  has  taught 
him  his  handicraft,  no  one  can  make  a  complaint. 

189.  If  he  has  not  taught  him  his  handicraft,  that  foster  child  shall 
return  to  the  house  of  his  father. 

190.  If  a  man,  a  small  child  whom  he  took  for  his  son  and  brought  him 
up,  with  his  own  sons  has  not  counted,  that  foster  son  shall  return  to  his 
father's  house. 

191.  If  a  man  who  has  taken  a  small  child  for  his  son  and  brought  him 
up,  has  afterwards  made  a  home  for  himself  and  his  acquired  children,  if  he 
sets  his  face  to  cut  off  the  foster  child ;  that  child  shall  not  go  his  way.    His 


272  APPENDIX  A. 

adopted  father  shall  give  him  of  his  goods  one-third  of  a  son's  share,  and  then 
he  shall  go.     Of  the  field,  garden,  and  house  he  shall  not  give  him. 

192.  If  the  son  of  a  favourite  slave  or  the  son  of  a  vowed  woman  to  the 
father  who  brought  him  up  and  to  the  mother  who  brought  him  up  say,  "Thou 
art  not  my  father,  thou  art  not  my  mother,"  one  shall  cut  out  his  tongue. 

193.  If  the  son  of  a  palace  favourite  or  the  son  of  a  vowed  woman 
has  known  the  house  of  his  father  and  has  hated  the  father  who  brought 
him  up  and  the  mother  who  brought  him  up,  and  has  gone  to  the  house  of 
his  father,  one  shall  tear  out  his  eyes. 

194.  If  a  man  has  given  his  son  to  a  nurse  and  if  his  son  has  died  in 
the  hand  of  the  nurse,  and  if  the  nurse,  without  the  consent  of  his  father  or 
mother,  another  child  has  nourished,  she  shall  be  brought  to  account  and 
because  she  nourished  another  child,  without  the  consent  of  the  father  and 
mother,  one  shall  cut  off  her  breasts. 

195.  If  a  son  has  struck  his  father,  one  shall  cut  off  his  hands. 

196.  If  one  destroys  the  eye  of  a  free-born  man,  his  eye  one  shall  de- 
Btroy. 

197.  If  anyone  breaks  the  limb  of  a  free-born  man,  his  limb  one  shall 
break. 

198.  If  the  eye  of  a  nobleman  he  has  destroyed,  or  the  limb  of  a 
nobleman  he  has  broken,  one  mina  of  silver  he  shall  pay. 

199.  If  he  has  destroyed  the  eye  of  the  slave  of  a  free-born  man 
or  has  broken  the  limb  of  the  slave  of  a  free-born  man,  he  shall  pay  the  half 
of  its  price. 

200.  If  he  knocks  out  the  teeth  of  a  man  who  is  his  equal,  his  teeth 
one  shall  knock  out. 

201.  If  the  teeth  of  a  freedman  he  has  made  to  fall  out,  he  shall  pay 
one-third  of  a  mina  of  silver. 

202.  If  anyone  has  injured  the  strength  of  a  man  who  is  high  above 
him,  he  shall  publicly  be  struck  with  sixty  strokes  of  a  cowhide  whip. 

203.  If  he  has  injured  the  strength  of  a  man  who  is  his  equal,  he 
shall  pay  one  mina  of  silver. 

204.  If  he  has  injured  the  strength  of  a  freedman,  one  shall  cut  off 
his  ear. 

205.  If  the  slave  of  a  man  has  injured  the  strength  of  a  free-born  man, 
one  shall  cut  off  his  ear. 

206.  If  a  man  has  struck  another  in  a  quarrel  and  has  wounded  him, 
and  that  man  shall  swear,  "I  did  not  strike  him  wittingly,"  he  shall  pay 
the  doctor. 

207.  If  he  dies  of  the  blows,  he  shall  swear  again,  and  if  it  was  a 
free-born  man,  he  shall  pay  one-half  mina  of  silver. 

208.  If  it  was  a  freedman,  he  shall  pay  one-third  a  mina  of  silver. 

215.  If  a  doctor  has  treated  a  man  for  a  severe  wound  with  a  lancet 
of  bronze  and  has  cured  the  man,  or  has  opened  a  tumour  with  a  bronze 
lancet  and  has  cured  the  man's  eye;    he  shall  receive  ten  shekels  of  silver. 

216.  If  it  was  a  freedman  he  shall  receive  five  shekels  of  silver. 

217.  If  it  was  a  man's  slave,  the  owner  of  the  slave  shall  give  the 
doctor  two  shekels  of  silver. 

218.  If  a  physician  has  treated  a  free-born  man  for  a  severe  wound 


THE   CODE   OF  HAMMURABI.  273 

with  a  lancet  of  bronze  and  has  caused  the  man  to  die,  or  has  opened  a  tumour 
of  the  man  with  a  lancet  of  bronze  and  has  destroyed  his  eye,  his  hands  one 
shall  cut  off. 

219.  If  a  doctor  has  treated  the  slave  of  a  freedman  for  a  severe 
wound  with  a  bronze  lancet  and  has  caused  him  to  die,  he  shall  give  back 
slave  for  slave. 

220.  If  he  has  opened  his  tumour  with  a  bronze  lancet  and  has  ruined 
his  eye,  he  shall  pay  the  half  of  his  price  in  money. 

221.  If  a  doctor  has  cured  the  broken  limb  of  a  man,  or  has  healed 
his  sick  body,  the  patient  shall  pay  the  doctor  five  shekels  of  silver. 

222.  If  it  was  a  freedman,  he  shall  give  three  shekels  of  silver. 

223.  If  it  was  a  man's  slave,  the  owner  of  the  slave  shall  give  two 
shekels  of  silver  to  the  doctor. 

224.  If  the  doctor  of  oxen  and  asses  has  treated  an  ox  or  an  ass  for  a 
grave  wound  and  has  cured  it,  the  owner  of  the  ox  or  the  ass  shall  give  to 
the  doctor  as  his  pay  one-sixth  of  a  shekel  of  silver. 

225.  If  he  has  treated  an  ox  or  an  ass  for  a  severe  wound  and  has 
caused  its  death,  he  shall  pay  one-fourth  of  its  price  to  the  owner  of  the 
ox  or  the  ass. 

226.  If  a  barber-surgeon,  without  consent  of  the  owner  of  a  slave, 
has  branded  the  slave  with  an  indelible  mark,  one  shall  cut  off  the  hands 
of  that  barber. 

227.  If  anyone  deceives  the  barber-surgeon  and  makes  him  brand  a 
slave  with  an  indelible  mark,  one  shall  kill  that  man  and  bury  him  in  his  house. 
The  barber  shall  swear,  "I  did  not  mark  him  wittingly,"  and  he  shall  be 
guiltless. 

228.  If  a  builder  has  built  a  house  for  some  one  and  has  finished  it, 
for  every  SAR  of  house  he  shall  give  him  two  shekels  of  silver  as  his  fee. 

229.  If  a  builder  has  built  a  house  for  some  one  and  has  not  made  his 
work  firm,  and  if  the  house  he  built  has  fallen  and  has  killed  the  owner  of 
the  house,  that  builder  shall  be  put  to  death. 

230.  If  it  has  killed  the  son  of  the  house-owner,  one  shall  kill  the  son 
of  that   builder. 

231.  If  it  has  killed  the  slave  of  the  house-owner,  he  (the  builder) 
shall  give  to  the  owner  of  the  house  slave  for  slave. 

232.  If  it  has  destroyed  property,  he  shall  restore  everything  he 
destroyed;  and  because  the  house  he  built  was  not  firm  and  fell  in,  out  of  his 
own  funds,  he  shall  rebuild  the  house  that  fell. 

233.  If  a  builder  has  built  a  house  for  some  one  and  has  not  made  its 
foundations  solid,  and  a  wall  falls,  that  builder  out  of  his  own  money  shall 
make  firm  that  wall. 

234.  If  a  boatman  has  caulked  (?)  a  boat  of  60  GUR  for  a  man,  he 
shall  give  him  two  shekels  of  silver  as  his  fee. 

235.  If  a  boatman  has  caulked  a  boat  for  a  man,  and  has  not  made 
firm  his  work,  if  in  that  year  that  ship  is  put  into  use  and  it  suffers  an  injury, 
the  boatman  shall  alter  that  boat  and  shall  make  it  firm  out  of  his  own  funds; 
and  he  shall  give  the  strengthened  boat  to  the  owner  of  the  boat. 

236.  If  a  man  has  given  his  boat  to  a  boatman  on  hire,  if  the  boatman 

Vol.  I.— 18. 


274  APPENDIX  A. 

has  been  careless,  has  grounded  the  boat  or  destroyed  it,  the  boatman  shall 
give  a  boat  to  the  owner  of  the  boat  in  compensation. 

237.  If  a  man  has  hired  a  boatman  and  a  boat,  and  has  loaded  it 
with  grain,  wool,  oil,  dates,  or  whatever  the  cargo  was;  if  that  boatman 
has  been  careless,  has  grounded  the  ship  and  destroyed  all  that  was  in  it, 
the  boatman  shall  make  good  the  ship  which  de  grounded  and  whatever  he 
destroyed  of  what  was  in  it. 

241.  If  a  man  has  forced  an  ox  to  too  hard  labour,  he  shall  pay  one- 
third  a  mina  of  silver. 

242.  If  a  man  hires  (the  ox)  for  one  year  he  shall  pay  4  GUR  of  grain 
as  the  hire  of  a  working  ox. 

243.  For  the  hire  of  an  ox  to  carry  burdens  (?)  he  shall  give  3  GUR 
of  grain  to  its  owner. 

244.  If  anyone  has  hired  an  ox  or  an  ass  and  if  in  the  field  a  lion 
has  killed  it,  the  loss  is  its  master's. 

250.  If  a  furious  ox  in  his  charge  gores  a  man  and  kills  him,  that 
case  cannot  be  brought  to  judgment. 

251.  If  an  ox  has  pushed  a  man  (with  his  horns)  and  in  pushing  showed 
him  his  vice,  and  if  he  has  not  blunted  his  horns,  has  not  shut  up  his  ox; 
if  that  ox  gores  a  free-born  man  and  kills  him,  he  shall  pay  one-half  a  mina 
of  silver. 

253.  If  a  man  has  hired  a  man  to  live  in  his  field  and  has  furnished 
him  seed  grain  (?)  and  oxen,  and  has  bound  him  to  cultivate  the  field;  if 
that  man  has  stolen  grain  or  plants  and  they  are  seized  in  his  possession 
one  shall  cut  off  his  hands. 

255.  If  he  has  given  out  the  man's  oxen  on  hire  or  has  stolen  the 
grain,  has  not  caused  it  to  grow  in  the  field;  one  shall  bring  that  man  to 
judgment,  for  100  GAN  of  land  he  shall  measure  out  60  GUR  of  grain. 

261.  If  a  man  has  hired  a  herdsman  to  pasture  cattle  and  sheep,  he 
shall  pay  him  8  GUR  of  grain  a  year. 

264.  If  a  herdsman,  to  whom  oxen  and  sheep  have  been  given  for 
pasturing,  has  received  his  wages,  whatever  was  agreed  upon,  and  his  heart 
is  contented;    if  he  has  diminished  the  oxen,  or  the   sheep  has  lessened 
the  offspring,  he  shall  give  offspring  and  produce  according  to  the  words 
of  his  agreement. 

265.  If  a  herdsman,  to  whom  oxen  and  sheep  have  been  given  for  pas- 
turing, has  deceived,  has  changed  the  price,  or  has  given  them  for  money; 
he  shall  be  brought  to  judgment  and  he  shall  return  to  their  owner  oxen 
and  gheep  ten  times  that  which  he  stole. 

271.  If  anyone  has  hired  oxen,  a  cart,  and  driver,  he  shall  pay  180  KA 
of  grain  for  one  day. 

278.  If  anyone  has  bought  a  man  or  woman  slave  and  before  the  end 
of  the  month  the  bennu-sickness  has  fallen  upon  him,  he  shall  return  him  to 
the  seller,  and  the  buyer  shall  take  back  the  money  which  he  paid. 

279.  If  anyone  has  bought  a  man  or  woman  slave  and  a  complaint  is 
made,  the  seller  shall  answer  for  the  complaint. 

282.  If  a  slave  has  said  to  his  master,  "Thou  art  not  my  master," 
one  shall  bring  him  to  judgment  as  his  slave,  and  his  master  shall  cut  off  his 
ear. 


APPENDIX  B. 

THE  TWELVE  TABLES. 

TABLE  I. 
THE  SUMMONS  BEFORE  THE  MAGISTRATE. 

1.  If  the  plaintiff  summon  a  man  to  appear  before  the  magistrate 
and  he  refuse  to  go,  the  plaintiff  shall  first  call  witnesses  and  arrest  him. 

2.  If  the  defendant  attempt  evasion  or  flight,  the  plaintiff  shall  take 
him  by  force. 

3.  If  the  defendant  be  prevented  by  illness  or  old  age,  let  him  who 
summons  him  before  the  magistrate  furnish  a  beast  of  burden,  but  he  need 
not  send  a  covered  carriage  for  him  unless  he  choose. 

4.  For  a  wealthy  defendant  only  a  wealthy  man  may  go   bail;   any 
one  who  chooses  may  go  bail  for  a  poor  citizen  of  the  lowest  class. 

5.  In  case  the  contestants  come  to  an  agreement,  the  magistrate  shall 
announce  the  fact. 

6.  In  case  they  come  to  no  agreement,  they  shall  before  noon  enter 
the  case  in  the  comitium  or  forum. 

8.  To  the  party  present  in  the  afternoon  the  magistrate  shall  award 
the  suit. 

9.  Sunset  shall  terminate  the  proceedings. 

10.  .     .     .    sureties  and  sub-sureties.     .     .    . 

TABLE  II. 
JUDICIAL  PROCEDURE. 

2.  A  serious  illness  or  a  legal  appointment  with  an  alien     .     . 
should  one  of  these  occur  to  the  judge,  arbiter,  or  either  party  to  the  suit, 
the  appointed  trial  must  be  postponed. 

3.  If  the  witnesses  of  either  party  fail  to  appear,  that  party  shall  go 
and  serve  a  verbal  notice  at  his  door  on  three  days. 

TABLE  III. 
EXECUTION  FOLLOWING  CONFESSION  OR  JUDGMENT. 

1.  A  debtor,  either  by  confession  or  judgment,  shall  have  thirty  days 
grace. 

2.  At  the  expiration  of  this  period  the  plaintiff  shall  serve  a  formal 
summons  upon  the  defendant,  and  bring  him  before  the  magistrate. 

3.  If  the  debt  be  not  paid  or  if  no  one  becomes  surety,  the  plaintiff 
shall  him  away,  and  bind  him  with  shackles  and  fetters  of  not  less  than 
fifteen  pounds  weight,  and  heavier  at  his  discretion. 

4.  If  the  debtor  wish,  he  may  live  at  his  own  expense;  if  not,  he  in 

875 


276  APPENDIX  B. 

whose  custody  he  may  be  shall  furnish  him  a  pound  of  meal  a  day,  more  at 
his  discretion. 

6.  On  the  third  market  day  the  creditors,  if  there  are  several,  shall 
divide  the  property.     If  one  take  more  or  less,  no  guilt  shall  attach  to  him. 

TABLE  IV. 
PATERNAL  RIGHTS. 

3.  If  a  father  shall  thrice  sell  his  son,  the  son  shall  be  free  from  the 
paternal  authority. 

TABLE  V. 

INHERITANCE  AND  TUTELAGE. 

3.  What  has  been  appointed  in  regard  to  the  property  or  tutelage 
shall  be  binding  in  law. 

4.  If  a  man  die  intestate,  having  no  natural  heirs,  his  property  shall 
pass  to  the  nearest  agnate. 

5.  If  there  be  no  agnate,  the  gentiles  shall  succeed. 

7.  ...     If  one  be  hopelessly  insane,  his  agnates  and  gentiles  shall 
have  authority  over  him  and  his  property.         .     .     in  case  there  be  none 
to  take  charge. 

8.  ...    from  that  estate    .     .    .    into  that  estate. 

TABLE  VI. 
OWNERSHIP  AND  POSSESSION. 

1.  Whenever  a  party  shall  negotiate  a  nexum  or  transfer  by  man- 
cipatio,  according  to  the  formal  statement  so  let  the  law  be. 

5.  Whoever  in  presence  of  the  magistrates  shall  join  issue  by  manuum 
consertio.  .  .  . 

7.    A  beam  built  into  a  house  or  vine-trellis  shall  not  be  removed. 

9.  When  the  vines  have  been  pruned,  until  the  grapes  are  removed. 

TABLE  VII. 
LAW  CONCERNING  REAL  PROPERTY. 

5.     If  parties  get  into  dispute  about  boundaries.     .     .     . 

7.  They  shall  pave  the  way.     If  they  do  not  pave  the  way  with  stones 
a  man  may  drive  where  he  pleases. 

8.  If  water  from  rain  gutters  cause  damage.     .     .     . 

TABLE  VIII. 
ON  TORTS. 

1.  Whoever  shall  chant  a  magic  spell.     .    . 

2.  If  a  man  maim  another,  and  does  not  compromise  with  him,  there 
shall  be  retaliation  in  kind. 

3.  If  with  the  fist  or  club  a  man  break  a  bone  of  a  freeman,  the  penalty 
shall  be  three  hundred  asses;  if  of  a  slave,  one  hundred  and  fifty  asses. 


THE   TWELVE    TABLES.  277 

4.  If  he  does  any  injury  to  another,  twenty-five  asses;  if  he  sing  a 
satirical  song  let  him  be  beaten. 

5.  .     .     .     If  he  shall  have  inflicted  a  loss     ...    he  shall  make 
it  good. 

8.     Whoever  shall  blight  the  crops  of  another  by  incantation     .     .     . 
nor  shalt  thou  win  over  to  thyself  another's  grain.     .     .     . 

12.  If  a  thief  be  caught  stealing  by  night  and  he  be  slain,  the  homicide 
shall  be  lawful. 

13.  If  in  the  daytime  the  thief  defend  himself  with  a  weapon,  one  may 
kill  him. 

15.  ...    with  a  leather  girdle  about  his  naked  body,  and  a  platter 
in  his  hand.     .     .     . 

16.  If  a  man  contend  at  law  about  a  theft  not  detected  in  the  act . . . 

21.  If  a  patron  cheat  his  client,  he  shall  become  infamous. 

22.  He  who  has  been  summoned  as  a  witness  or  acts  as  libripens,  and 
shall  refuse  to  give  his  testimony,  shall  be  accounted  infamous,  and  shall 
be  incapable  of  acting  subsequently  as  witness. 

24.     If  a  weapon  slip  from  a  man's  hand  without  his  intention  of 
hurling  it     ... 

TABLE  IX. 

(No  fragments  of  this  table  are  extant.) 

TABLE  X. 
SACRED  LAW. 

1.  They  shall  not  inter  or  burn  a  dead  man  within  the  city. 

2.  ...     more  than  this  a  man  shall  not  do     .     .     .     ;    a  man 
shall  not  smooth  the  wood  for  the  funeral  pyre  with  an  axe. 

4.  Women  shall  not  lacerate  their  faces,  nor  indulge  in  immoderate 
wailing  for  the  dead. 

5.  They  shall  not  collect  the  bones  of  a  dead  man  for  a  second  in- 
terment. 

7.  Whoever  wins  a  crown,  either  in  person  or  by  his  slaves  or  animals, 
or  has  received  it  for  valor     .     .     . 

8.  ...     he  shall  not  add  gold     .     .     .     ;  but  gold  used  in  joining 
the  teeth     .     .     .    This  may  be  burned  or  buried  with  the  dead  without 
incurring  any  penalty. 

TABLE  XI. 

(No  fragments  of  this  table  are  extant.) 

TABLE  XII. 
SUPPLEMENTARY  LAWS. 

2.  If  a  slave  has  committed  theft,  or  has  done  damage    .     .     . 

3.  If  either  party  shall  have  won  a  suit  concerning  property  by  foul 
means,  at  the  discretion  of  the  opponent     .     .     .    the  magistrate  shall  fix 
the  damage  at  twice  the  profits  arising  from  the  interim  possession. 


APPENDIX  C. 

MAGNA  CHARTA. 

JOHN,  by  the  grace  of  God  king  of  England,  lord  of  Ireland,  duke  of  Nor- 
mandy and  Aquitaine,  and  count  of  Anjou,  to  his  archbishops,  bishops, 
abbots,  earls,  barons,  justiciaries,  foresters,  sheriffs,  governores,  officers, 
and  to  all  bailiffs,  and  faithful  subject,  greeting.  Know  ye,  that  we, 
in  the  presence  of  God,  and  for  the  salvation  of  our  soul,  and  the  souls 
of  our  ancestors  and  heirs,  and  unto  the  honour  of  God  and  the  advance- 
ment of  Holy  Church,  and  amendment  of  our  Realm,  by  the  advice  of 
our  venerable  Fathers,  STEPHEN,  Archbishop  of  Canterbury,  primate 
of  all  England,  and  cardinal  of  the  Holy  Roman  Church,  HENRY, 
Archbishop  of  Dublin,  WILLIAM  of  London,  PETER  of  Winchester, 
JOCELIN  of  Bath  and  Glastonbury,  HUGH  of  Lincoln,  WALTER  of 
Worchester,  WILLIAM  of  Coventry,  BENEDICT  of  Rochester, 
Bishops;  of  Master  PANDULF,  Sub-Deacon  and  Familiar  of  our  Lord 
the  Pope,  Brother  AYMERIC,  Master  of  the  Knight-Templars  in 
England;  and  of  the  Noble  Persons,  WILLIAM  MARESCALL,  Earl 
of  Pembroke,  WILLIAM,  Earl  of  Salisbury,  WILLIAM,  Earl  of  Warren, 
WILLIAM,  Earl  of  Arundel,  ALAN  de  GALLOWAY,  Constable  of 
Scotland,  WARIN  FITZ  GERALD,  PETER  FTTZ  HERBERT,  and 
HUBERT  DE  BURGH,  Seneschal  of  Poitou,  HUGH  de  NEVILLE, 
MATTHEW  FITZ  HERBERT,  THOMAS  BASSET,  ALAN  BASSET, 
PHILIP  of  ALBINEY,  ROBERT  de  ROPPELL,  JOHN  MARE- 
SCHALL,  JOHN  FITZ  HUGH,  and  others  our  liegemen,  have,  in  the 
first  place,  granted  to  God,  and  by  this  our  present  Charter  con- 
firmed, for  us  and  our  heirs  forever: 

1.  That  the  Church  of  England  shall  be  free,  and  have  her  whole 
rights,  and  her  liberties  inviolable;    and  we  will  have  them  BO  observed, 
that  it  may  appear  thence,  that  the  freedom  of  elections,  which  is  reckoned 
chief  and  indispensable  to  the  English  Church,  and  which  we  granted  and 
confirmed  by  our  Charter,  and  obtained  the  confirmation  of  the  same  from 
our  Lord  the  Pope  Innocent  III.  before  the  discord  between  us  and  our 
barons,  was  granted  of  mere  free  will;  which  Charter  we  shall  observe,  and  we 
do  will  it  to  be  faithfully  observed  by  our  heirs  forever.     We  also  have  granted 
to  all  the  freedom  of  our  kingdom,  for  us  and  for  our  heirs  forever,  all  the 
underwritten  liberties,  to  be  hand  and  holden  by  them  and  their  heirs,  of  us 
and  our  heirs  forever. 

2.  If  any  of  our  earls,  or  barons,  or  other,  who  hold  of  us  in  chief 
by  military  service,  shall  die,  and  at  the  time  of  his  death,  his  heir  shall  be 
of  full  age,  and  owes  a  relief,  he  shall  have  his  inheritance  by  paying  the 
ancient  relief;  that  is  to  say,  the  heir  or  heirs  of  an  earl,  for  a  whole  earldom, 
by  a  hundred  pounds;  the  heir  or  heirs  of  a  baron,  for  a  whole  barony,  by  a 
hundred  pounds;  the  heir  or  heirs  of  a  knight,  for  a  whole  knight's  fee,  by  a 

279 


280  APPENDIX    C. 

hundred  shillings  at  most;  and  whoever  oweth  less  shall  give  less,  according 
to  the  ancient  custom  of  fees. 

3.  But  if  the  heir  of  any  such  shall  be  under  age,  and  shall  be  in 
ward,  when  he  comes  of  age,  he  shall  have  his  inheritance  without  relief 
and  without  fine. 

4.  The  keeper  of  the  land  of  such  an  heir,  who  shall  be  under  age, 
shall  take  of  the  land  of  the  heir  none  but  reasonable  issues,  reasonable 
customs,  and  reasonable  services,  and  that  without  destruction  and  waste 
of  his  men  and  his  goods;   and  if  we  commit  the  custody  of  any  such  lands 
to  the  sheriff,  or  any  other  who  is  answerable  to  us  for  the  issues  of  the  land, 
and  he  shall  make  destruction  and  waste  of  the  lands  which  he  hath  in  custody, 
we  will  take  of  him  amends,  and  the  land  shall  be  committed  to  two  lawful 
and  discreet  men  of  that  fee,  who  shall  answer  for  the  issues  to  us,  or  to  him 
to  whom  we  shall  assign  them;   and  if  we  sell  or  give  to  anyone  the  custody 
of  any  such  lands,  and  he  therein  make  destruction  or  waste,  he  shall  loose 
the  same  custody,  which  shall  be  committed  to  two  lawful  and  discreet  men 
of  that  fee,  who  shall  in  like  manner  answer  to  us  as  aforesaid. 

5.  Moreover  the  keeper,  so  long  as  he   shall  have  the  custody  of  the 
land,  shall  keep  up  the  houses,  parks,  warrens,  ponds,  mills,  and  other  things 
pertaining  to  the  lands,  out  of  the  issues  of  the  same  land;  and  shall  deliver 
to  the  heir,  when  he  comes  of  full  age,  his  whole  land,  stocked  with  ploughs, 
and  carriages,  according  as  the  time  of  wainage  shall  require  and  the  issues 
of  the  land  can  reasonably  bear. 

6.  Heirs  shall  be  married  without  disparagement,  and  so  that  be- 
fore matrimony  shall  be  contracted  those  who  are  near  in  blood  to  the  heir 
shall  have  notice. 

7.  A  widow,  after  the  death  of   her    husband,  shall  forthwith  and 
without  difficulty  have  her  marriage  portion  and  inheritance;    nor  shall 
she  give  anything  for  her  dower,  or  her  marriage  portion  or  her  inheritance 
which  her  husband  and  she  held  at  the  day  of  his  death;  and  she  may  remain 
in  the  mansion  house  of  her  husband  forty  days  after  his  death,  within  which 
term  her  dower  shall  be  assigned  to  her. 

8.  No  widow  shall  be  distrained  to  marry  again,  so  long  as  she  has 
a  mind  to  live  without  a  husband;   but  yet  she  shall  give  security  that  she 
will  not  marry  without  our  assent,  if  she  holds  of  us;    or  without  the  con- 
sent of  the  lord  of  whom  she  holds,  if  she  hold  of  another. 

9.  Neither  we  nor  our  bailiffs  shall  seize  any  land  or  rent  for  any 
debt  so  long  as  the  chattels  of  the  debtor  are  sufficient  to  pay  the  debt;  nor 
shall  the  sureties  of  the  debtor  be  distrained  so  long  as  the  principal  debtor 
is  sufficient  for  the  payment  of  the  debt;  but  if  the  principal  debtor  shall  fail 
in  the  payment  of  the  debt,  not  having  wherewithal  to  pay  it,  then  the  sureties 
shall  answer  for  the  debt;   and  if  they  will  they  shall  have  the  lands  and 
rents   of  the  debtor,  until  they  shall  be  satisfied  for  the  debt  which  they 
paid  for  him,  unless  the  principal  debtor  can  show  himself  acquitted  thereof 
against  the  said  sureties. 

10.  If  anyone  have  borrowed  anything  of  the  Jews,  more  or  less,  and 
die  before  the  debt  be  satisfied,  there  shall  be  no  interest  paid  for  that  debt, 
so  long  as  the  heir  is  under  age,  of  whomsoever  he  may  hold;   and  if  the 


MAGNA   CHARTA.  281 

debt  fall  into  our  hands  we  will  only  take  the  chattel  mentioned  in  the  deed. 

11.  And  if  anyone  shall  die  indebted  to  the  Jews,  his  wife  shall  have 
her  dower  and  pay  nothing  of  that  debt;    and  if  the  deceased  left  children 
under  age,  they  shall    have  necessaries  provided  for  them,  according    to 
the  tenement  of  the  deceased;  and  out  of  the  residue  the  debt  shall  be  paid, 
saving  however  the  service  due  to  the  lords;   and  in  like  manner  shall  it  be 
done  touching  debts  due  to  others  than  the  Jews. 

12.  No  scutage  or  aid  shall  be  imposed  in  our  kingdom,  unless  by 
the  general  council  of  our  kingdom;  except  for  ransoming  our  person,  making 
our  eldest  son  a  knight,  and  once  for  marrying  our  eldest  daughter;    and 
for  these  shall  be  paid  only  a  reasonable  aid.     In  like  manner  it  shall  be 
concerning  the  aids  of  the  City  of  London. 

13.  And  the  City  of  London  shall  have  all  its  ancient  liberties  and 
free  customs,  as  well  by  land  as  by  water;    furthermore  we  will  and  grant 
that  all  other  cities  and  boroughs,  and  towns  and  ports,  shall  have  all  their 
liberties  and  free  customs. 

14.  And  for  holding  the  general  council  of  the  kingdom  concerning 
the  assessment  of  aids,  except  in  the  three  cases  aforesaid,  and  for  the  assessing 
of  scutages,  we  shall  cause  to  be  summoned  to  the  archbishops,  bishops, 
abbots,  earls,  and  greater  barons  of  the  realm,  singly  by  our  letters.     And 
furthermore  we  shall  cause  to  be  summoned  generally  by  our  sheriffs  and 
bailiffs,  all  others  who  hold  of  us  in  chief,  for  a  certain  day,  that  is  to  say, 
forty  days  before  their  meeting  at  least,  and  to  a  certain  place;   and  in  all 
letters  of  such  summons  we  will  declare  the  cause  of  such  summons.     And 
summons  being  thus  made,  the  business  of  the  day,  shall  proceed  on  the 
day  appointed,  according  to  the  advice  of  such  as  shall  be  present,  although 
all  that  were  summoned  come  not. 

15.  We  will  not  for  the  future  grant  to  anyone  the  right  to  take 
aid  of  his  own  free  tenants,  unless  to  ransom  his  body,  and  to  make  his  eldest 
son  a  knight  and  once  to  marry  his  eldest  daughter;  and  for  this  there  shall 
be  only  paid  a  reasonable  aid. 

16.  No  man  shall   be  distrained    to    perform   more    service    for   a 
knight's  fee,  or  other  free  tenement,  than  is  due  from  thence. 

17.  Common  pleas  shall  not  follow  our  court,  but  shall  be  holden  in 
some  certain  place. 

18.  Assizes  of  novel  disseisin,  and  of  mort  d 'ancestor,  and  of  darrien 
presentment,  shall  not  be  taken  but  in  their  proper  countries,  and  after  this 
manner:    We,  or,  if  we  should  be  out  of  the  realm,  our  chief  justiciar,  shall 
Bend  two  justiciaries  through  every  county  every  four  times  a  year,  who, 
with  four  knights,  chosen  out  of  every  shire  by  the  people,  shall  hold  the  said 
assizes,  in  the  count,  on  the  day,  and  at  the  place  appointed. 

19.  And  if  any  matters  cannot  be  determined  on  the  day  appointed 
for  holding  the  assizes  in  each  county,  so  many  of  the  knights  and  freeholders 
as  have  been  at  the  assizes  aforesaid,  shall  stay  to  decide  them  as  is  necessary, 
according  as  there  is  more  or  less  business. 

20.  A  freeman  shall  not  be  amerced  for  a  small  offence,  except  accord- 
ing to  the  measure  of  the  offence;  and  for  a  great  crime  according  to  the 
heinoueness  of  it,  saving  to  him  his  contentment;  and  after  the  same  manner 


282  APPENDIX    C. 

a  merchant,  saving  to  him  his  merchandise.  And  a  villain  shall  be  amerced 
after  the  same  manner,  saving  to  him  his  wainage,  if  he  falls  under  our  mercy; 
and  none  of  the  aforesaid  amerciaments  shall  be  assessed  save  upon  the  oath 
of  honest  men  in  the  neighborhood. 

21.  Earls  and  barons  shall  not  be  amerced,  but  by  their  peers,  and 
according  to  the  degree  of  the  offence. 

22.  No  ecclesiastical  person  shall  be  amerced  for  his  lay  tenement, 
except  according  to  the  proportion  of  the  others  aforesaid,  and  not  according 
to  the  value  of  his  ecclesiastical  benefice. 

23.  Neither  a  town  nor  any  tenant  shall  be  distrained  to  make  bridges 
or  banks  unless  anciently  and  of  right  they  are  bound  to  do  it. 

24.  No  sheriff,  constable,  coroner,  or  other  of  our  bailiffs,  shall  hold 
pleas  of  the  crown. 

25.  All  counties,  hundreds,  wapentakes,  and  tithings,  shall  stand  at 
the  old  rents,  without  any  increase,  except  in  our  demesne  manors. 

26.  If  anyone  holding  of  us  a  lay-fee  shall  die,  and  the  sheriff,  or  our 
bailiffs,  can  show  our  letters  patent,  containing  our  summons  for  the  debt 
which  the  dead  man  did  owe  to  us,  it  shall  be  lawful  for  the  sheriff  or  our 
bailiff  to  attach  and  inroll  the  chattels  of  the  dead,  found  upon  his  layfee, 
to  the  value  of  the  debt,  by  the  view  of  lawful  men,  so,  however,  that  nothing 
be  removed  until  our  whole  clear  debt  be  paid;  and  the  rest  shall  be  left  to 
the  executors  to  fulfil  the  testament  of  the  dead,  and  if  there  be  nothing  due 
from  him  to  us,  all  the  chattels  shall  go  to  the  use  prescribed  by  the  dead, 
saving  to  his  wife  and  children  their  reasonable  shares. 

27.  If  any  freeman  shall  die  intestate,  his  chattels  shall  be  distributed 
by  the  hands  of  his  nearest  relations  and  friends,  by  view  of  the  church; 
saving  to  everyone  the  debts  which  the  deceased  owed  to  him. 

28.  No  constable  or  bailiff  of  ours  shall  take  corn  or  other  chattels 
of  any  man,  unless  he  presently  give  him  money  for  it,  or  hath  respite  of 
payment  by  the  good-will  of  the  seller. 

29.  No  constable  shall  distrain  any  knight  to  give  money  for  castle 
ward,  if  he  himself  will  do  it  in  his  person,  or  by  another  able  man  in  case 
he  cannot  do  it  through  any  reasonable  cause.    And  if  we  lead  him,  or  send 
him  in  any  army,  he  shall  be  free  from  such  ward  for  the  time  he  shall  be  in 
the  army  by  our  command. 

30.  No  sheriff  or  bailiff  of  ours,  or  any  other,  shall  take  horses  or  carts 
of  any  freeman  for  carriage,  but  by  the  good-will  of  the  said  freeman. 

31.  Neither  shall  we  nor  our  bailiffs  take  any  man's  timber  for  our 
castles  or  other  uses,  unless  by  the  consent  of  the  owner  of  the  timber. 

32.  We  will  retain  the  lands  of  those  convicted  of  felony  only  one 
year  and  a  day,  and  then  they  shall  be  delivered  to  the  lord  of  the  fee. 

33.  All  weirs  for  the  time  to  come  shall  be  done  away  with  in  the 
rivers  of  the  Thames  and  throughout  all  England,  except  upon  the  sea  coast. 

34.  The  writ  which  is  called  praecipe,  for  the  future,  shall  not  be 
served  upon  anyone,  of  any  tenement,  whereby  a  freeman  may  lose  his  court. 

35.  There  shall  be  one  measure  of  wine  and  one  of  ale  through  our 
whole  realm;  and  one  measure  of  corn,  that  is  to  say,  the  London  quarter; 
and  one  breadth  of  dyed  cloth,  and  russets,  and  haberjects,  that  is  to  say, 
two  ells  within  the  lists;  and  it  shall  be  of  weights  as  it  is  of  measures. 


MAGNA   CHARTA.  283 

36.  Nothing  from  henceforth  shall  be  given  or  taken  for  a  writ  of 
inquisition  of  life  or  limb,  but  it  shall  be  granted  freely,  and  not  denied. 

37.  If  any  do  hold  of  us  by  fee-farm,  or  by  socage,  or  by  burgage, 
and  he  hold  also  lands  of  any  other  by  knight's  service,  we  will  not  have  the 
custody  of  the  heir  or  land,  which  is  holden  of  another  man's  fee  by  reason 
of  that  fee-farm,  socage,  or  burgage;  neither  will  we  have  the  custody  of  such 
fee-farm,  socage,  or  burgage;  except  knight's  service  was  due  to  us  out  of  the 
same  fee-farm.     We  will  not  have  the  custody  of  an  heir,  nor  of  any  land 
which  he  holds  of  another  by  knight's  service,  by  reason  of  any  petty  ser- 
jeanty  that  holds  of  us,  by  the  service  of  paying  a  knife,  an  arrow,  or  the  like. 

38.  No  bailiff  from  henceforth  shall  put  any  man  to  his  law  upon  his 
own  bare  assertion,  without  credible  witnesses  to  prove  it. 

39.  No  freeman  shall  be  taken  or  imprisoned,  or  disseised,  or  out- 
lawed, or  banished,  or  any  ways  destroyed,  nor  will  we  pass  upon  him,  nor 
will  we  send  upon  him,  save  by  the  lawful  judgment  of  his  peers,  or  by  the 
law  of  the  land. 

40.  We  will  sell  to  no  man,  we  will  not  deny  to  any  man,  either  justice 
or  right. 

41.  All  merchants  shall  have  safe  and  secure  conduct,  to  go  out  of, 
and  to  come  into  England,  and  to  stay  there,  and  to  pass  as  well  by  land  as 
by  water,  for  the  purpose  of  buying  and  selling  according  to  the  ancient  and 
allowed  customs,  without  any  evil  tolls;  except  in  time  of  war,  or  when  they 
are  of  any  nation  at  war  with  us.     And  if  there  be  found  any  such  in  our 
land,  in  the  beginning  of  the  war,  they  shall  be  held,  without  damage  to  their 
bodies  or  goods,  until  it  be  known  unto  us  or  of  our  chief  justiciar,  how  our 
merchants  be  treated  in  the  nation  at  war  with  us;  and  if  ours  be  safe  there, 
the  others  shall  be  safe  in  our  dominions. 

42.  It  shall  be  lawful,  henceforth,  for  anyone  to  go  out  of  our  king- 
dom, and  return  safely  and  securely,  by  land  or  by  water,  saving  his  allegiance 
to  us;  unless  in  time  of  war,  for  some  short  space,  for  the  common  benefit  of 
the  realm;  but  prisoners  and  outlaws,  according  to  the  law  of  the  land,  shall 
be  except ed,  and  people  at  war  with  us,  and  merchants  who  shall  be  in  such 
condition  as  is  above  mentioned. 

43.  If  any  man  hold  of  any  escheat,  as  of  the  honour  of  Wallingford, 
Nottingham,  Boulogne,  Lancaster,  or  of  other  escheats  which  be  in  our  hands, 
and  are  of  baronies,  and  shall  die,  his  heir  shall  give  no  other  relief,  and  per- 
form no  other  service  to  us,  than  he  would  to  the  baron,  if  it  were  in  the 
baron's  hand;  we  will  hold  it  after  the  same  manner  as  the  baron  held  it. 

44.  Those  men  who  dwelt  without  the  forest,  from  henceforth  shall 
not  come  before  our  justiciaries  of  the  forest,  upon  common  summons,  but 
such  as  are  impleaded,  or  are  pledges  for  any  that  are  attached  for  something 
concerning  the  forest. 

45.  We  will  not  make  any  justices,  constables,  sheriffs,  or  bailiffs, 
unless  they  are  such  as  know  the  law  of  the  realm  and  mean  duly  to  observe  it. 

46  All  barons  who  have  founded  abbeys,  and  have  the  kings  of 
England's  charters  of  advowson,  or  the  ancient  tenure  thereof,  shall  have 
the  keeping  of  them,  when  vacant,  as  they  ought  to  have. 

47.    All  forests  that  have  been  forests  in  our  time,  shall  forthwith 


284  APPENDIX   C. 

be  disforested;   and  the  same  shall  be  done  with  the  river  banks  that  have 
been  fenced  in  by  us  in  our  time. 

48.  All    evil    customs    concerning    forests,    warrens,    foresters,    and 
warreners,  sheriffs  and  their  officers,  rivers,  and  their  keepers,  shall  forthwith 
be  inquired  into  in  each  county,  by  twelve  sworn  knights  of  the  same  shire, 
chosen  by  creditable  persons  of  the  same  county;    and  within  forty  days 
after  the  said  inquest,  be  utterly  abolished,  so  as  never  to  be  restored;  so  that 
we  are  first  acquainted  therewith,  or  our  justiciar,  if  we  should  not  be  in 
England. 

49.  We  will  immediately  give  up  all  hostages  and  charters  delivered 
unto  us  by  our  English  subjects,  as  securities  for  their  keeping  the  peace, 
and  yielding  us  faithful  service. 

50.  We  will  entirely  remove  from  our  bailiwicks  the  relations  of 
Gerard  de  Atheyes,  so  that  for  the  future  they  shall  have  no  bailiwick  in 
England;    we  will  also  remove  Engelard  de  Cygnes,  Andrew,  P.  Peter,  and 
Ryon  de  Chanceles;  Gyon  de  Cygnes,  Geoffrey  de  Martyn  and  his  brothers; 
Philip  Mark  and  his  brothers,  and  his  nephew,  Geoffrey,  and  their  whole 
retinue. 

51.  As  soon  as  peace  is  restored,  we  will  send  out  of  the  kingdom  all 
foreign  soldiers,  cross-bowmen,  and  stipendiaries,  who  are  come  with  horses 
and  arms  to  the  prejudice  of  our  people. 

52.  If  anyone  has  been  dispossessed  or  deprived  by  us,  without  the 
legal  judgment  of  his  peers,  of  his  lands,  castles,  liberties,  or  right,  we  will 
forthwith  restore  them  to  him  ;  and  if  any  dispute  arise  upon  this  head, 
it  shall  be  decided  by  the  five-and-twenty  barons  hereafter  mentioned,  for 
the  preservation  of  the  peace.    As  for  all  those  things  of  which  any  person 
has,  without  the  legal  judgment  of  his  peers,  been  dispossessed  or  deprived, 
either  by  King  Henry  our  father,  or  our  brother  King  Richard,  and  which 
we  have  in  our  hands,  or  are  possessed  by  others,  and  which  we  are  bound 
to  warrant  and  make  good,  we  shall  have  a  respite  till  the  term  usually  allowed 
the  crusaders;   excepting  those  things  about  which  there  is  a  plea  depending 
or  whereof  an  inquest  hath  been  made,  by  our  order,  before  we  undertook 
the  crusade,  but  when  we  return  from  our  pilgrimage,  or  if  perchance  we  tarry 
at  home  and  do  not  make  our  pilgrimage,  we  will  immediately  cause  full 
justice  to  be  administered  therein. 

53.  The  same  respite  we  shall  have  (and  in  the  same  manner  about 
administering  justice,  disafforesting  the  forests,  or  letting  them  continue) 
for  disafforesting  the  forest,  which  Henry  our  father,  and  our  brother  Richard 
have  afforested;  and  for  the  keeping  of  the  lands  which  are  in  another's  fee, 
in  the  same  manner  as  we  have  hitherto  enjoyed  those  wardships,  by  reason 
of  a  fee  held  by  us  by  knight's;  and  for  the  abbeys  founded  in  any  other  fee 
than  our  own,  in  which  the  lord  of  the  fee  says  he  has  a  right;  and  when  we 
return  from  our  pilgrimage,  or  if  we  tarry  at  home,  and  do  not  make  our 
pilgrimage,  we  will  immediately  do  full  justice  to  all  the  complainants  in 
this  behalf. 

54.  No  man  shall  be  taken  or  imprisoned  upon  the  appeal  of  a  woman, 
for  the  death  of  any  other  than  her  husband. 

55.  All  unjust  and  illegal  fines  made  by  us,  and  all  amerciamenta 


MAGNA   CHARTA.  285 

imposed  unjustly  and  contrary  to  the  law  of  the  land,  shall  be  entirely  given 
up,  or  else  be  left  to  the  decision  of  the  five-and-twenty  barons  hereafter 
mentioned  as  sureties  of  the  peace,  or  of  the  major  part  of  them,  together 
with  the  aforesaid  Stephen,  archbishop  of  Canterbury,  if  he  can  be  present 
and  others  whom  he  shall  think  fit  to  associate  with  him;  and  if  he  cannot 
be  present,  the  business  shall  notwithstanding  go  on  without  him;  but  so 
that  if  one  or  more  of  the  aforesaid  five-and-twenty  barons  be  plaintiffs 
in  the  same  cause,  they  shall  be  set  aside  as  to  what  concerns  this  particular 
affair,  and  others  shall  be  chosen  in  their  room,  out  of  the  said  five-and-twenty, 
and  sworn  by  the  rest  to  decide  the  matter. 

66.  If  we  have  disseised  or  dispossessed  the  Welsh,  of  any  lands, 
liberties,  or  other  things,  without  the  legal  judgment  of  their  peers,  either 
in  England  or  in  Wales,  they  shall  be  immediately  restored  to  them;  and  if 
any  dispute  arise  upon  this  head,  the  matter  shall  be  determined  in  the  March 
by  the  judgment  of  their  peers;  for  tenements  in  England  according  to  the 
law  of  England,  for  tenements  in  Wales  according  to  the  law  of  Wales,  for 
tenements  of  the  March  according  to  the  law  of  the  March;  the  same  shall 
the  Welsh  do  to  us  and  our  subjects. 

57.  As  for  all  those  things  of  which  a  Welshman  hath,  without  the 
legal  judgment  of  his  peers,  been  disseised  or  deprived  of  by  King  Henry 
our  father,  or  our  brother  King  Richard,  and  which  we  either  have  in  our 
hands,  or  others  are  possessed  of,  and  for  which  we  are  obliged  to  give  a 
guarantee,  we  shall  have  a  respite  till  the  time  generally  allowed  the  crusaders; 
excepting  those  things  about  which  a  suit  is  depending,  or  whereof  an  in- 
quest has  been  made  by  our  order,  before  we  undertook  the  crusade;  but  when 
we  return,  or  if  we  stay  at  home  without  performing  our  pilgrimage,  we  will 
immediately  do  them  full  justice,  according  to  the  laws  of  the  Welsh  and  of  the 
parts  before  mentioned. 

58.  We  will  without  delay  dismiss  the  son  of  Llewelyn,  and  all  the 
Welsh  hostages,  and  release  them  from  the  engagements  they  have  entered 
into  with  us  for  the  preservation  of  the  peace. 

59.  We  will  treat  with  Alexander,  King  of  the  Scots,  concerning  the 
restoring  his  sisters  and  hostages,  and  his  right  and  liberties,  in  the  same 
form  and  manner  as  we  shall  do  to  the  rest  of  our  barons  of  England;  unless 
by  the  charters  which  we  have  from  his  father,  William,  late  King  of  the 
Scots,  it  ought  to  be  otherwise;   but  this  shall  be  left  to  the  determination 
of  his  peers  in  our  court. 

60.  All  the  aforesaid  customs  and  liberties,  which  we  have  decreed  to 
be  observed  in  our  kingdom,  as  far  as  it  belongs  to  us,  towards  our  people 
of  our  kindgom,  the  clergy  as  well  as  laity  shall  observe,  as  far  as  they  are 
concerned,  towards  their  own  dependents. 

61.  And  whereas,  for  the  honour  of  God  and  the  amendment  of  our 
kingdom,  and  for  the  better  quieting  the  discord  that  has  arisen  between 
us  and  our  barons,  we  have  granted  all  these  things  aforesaid;  willing  to  render 
them  firm  and  lasting,  we  do  give  and  grant  our  subjects  the  underwritten 
security,  namely,  that  the  barons  may  choose  five-and-twenty  barons  of  the 
kingdom,  whom  they  think  worthy;  who  shall  take  care,  with  all  their  might, 
to  hold  and  observe,  and  cause  to  be  observed,  the  peace  and  liberties  we 


286  APPENDIX  C. 

have  granted  them,  and  by  this  our  present  charter  confirmed;  so  that  if 
we,  our  justiciar,  our  bailiffs,  or  any  of  our  officers,  shall  in  any  circum- 
stance fail  in  the  performance  of  them,  towards  any  person,  or  shall  break 
through  any  of  these  articles  of  peace  and  security,  and  the  offence  be  notified 
to  four  barons  chosen  out  of  the  five-and-twenty  before  mentioned,  the  said 
four  barons  shall  repair  to  us,  or  our  justiciar,  if  we  are  out  of  the  realm,  and, 
laying  open  the  grievance,  shall  petition  to  have  it  redressed  without  delay; 
and  if  it  be  not  redressed  by  us,  or  if  we  should  chance  to  be  out  of  the  realm, 
if  it  should  not  be  redressed  by  our  justiciar,  within  forty  days,  reckoning 
from  the  time  it  has  been  notified  to  us,  or  to  our  justiciar  (if  we  should  be 
out  of  the  realm),  the  four  barons  aforesaid  shall  lay  the  cause  before  the 
rest  of  the  five-and-twenty  barons;  and  the  said  five-and-twenty  barons, 
together  with  the  cummunity  of  the  whole  kingdom,  shall  distrain  and  dis- 
tress us  in  all  possible  ways,  by  seizing  our  castles,  lands,  possessions,  and 
in  any  other  manner  they  can,  till  the  greivance  is  redressed  according  to  their 
pleasure;  saving  harmless  our  own  person,  and  the  persons  of  our  queen  and 
children;  and  when  it  is  redressed,  they  shall  obey  us  as  before.  And  any 
person  whatsoever  in  the  kindgom  may  swear  that  he  will  obey  the  orders 
of  the  five-and-twenty  barons  aforesaid,  in  the  execution  of  the  premises,  and 
will  distress  us,  jointly  with  them,  to  the  utmost  of  his  power;  and  we  give 
public  and  free  liberty  to  anyone  that  shall  please  to  swear  to  this,  and 
never  will  hinder  any  person  from  taking  the  same  oath. 

62.  As  for  all  those  of  our  subjects  who  will  not,  of  their  own  accord, 
swear  to  join  the  five-and-twenty  barons  in  distraining  and  distressing  us, 
we  will  issue  orders  to  make  them  take  the  same  oath  as  aforesaid,  And  if 
any  one  of  the  five-and-twenty  barons  dies,  or  goes  out  of  the  kingdom, 
or  is  hindered  any  other  way  from  carrying  the  things  aforesaid  into  execu- 
tion, the  rest  of  the  said  five-and-twenty  barons  may  choose  another  in  his 
room,  at  their  discretion,  who  shall  be  sworn  in  like  manner  as  the  rest. 
In  all  things  that  are  committed  to  the  execution  of  these  five-and-twenty 
barons,  if,  when  they  are  all  assembled  together,  they  should  happen  to  dis- 
agree about  any  matter,  and  some  of  them,  when  summoned,  will  not,  or  cannot 
come,  whatever  is  agreed  upon,  or  enjoined,  by  the  major  part  of  those  that 
are  present,  shall  be  reputed  as  firm  and  valid  as  if  all  the  five-and-twenty 
had  given  their  consent;  and  the  aforesaid  five-and-twenty  shall  swear  that 
all  the  premises  they  shall  faithfully  observe,  and  cause  with  all  their  power 
to  be  observed.  And  we  will  not,  by  ourselves,  or  by  any  other,  procure 
anything  whereby  any  of  these  concessions  and  liberties  may  be  revoked 
or  lessened;  and  if  any  such  thing  be  obtained,  let  it  be  null  and  void;  neither 
shall  we  ever  make  use  of  it,  either  by  ourselves  or  any  other.  And  all  the  ill- 
will,  indignations,  and  rancours  that  have  arisen  between  us  and  our  subjects, 
of  the  clergy  and  laity,  from  the  first  breaking  out  of  the  dissensions  between 
us,  we  do  fully  remit  and  forgive;  more  over  all  trespassess  occasioned  by  the 
said  dissensions,  from  Easter  in  the  fifteenth  year  of  our  reign,  till  the  restora- 
tion of  peace  and  tranquillity,  we  hereby  entirely  remit  to  all,  both  clergy  and 
laity,  and  as  far  as  in  us  lies  do  fully  forgive.  We  have,  moreover,  caused 
to  be  made  for  them  the  letters  patent  testimonial  of  Stephen,  lord  archbishop 
of  Canterbury,  Henry,  lord  archbishop  of  Dublin,  and  the  bishops  aforesaid, 
as  also  of  Master  Pandulf ,  for  the  security  and  concessions  aforesaid. 


MAGNA   CHARTA.  287 

63.  Wherefore  we  will  and  firmly  enjoin,  that  the  Church  of  England 
be  free,  and  that  all  the  men  in  our  kingdom  have  and  hold  all  the  aforesaid 
liberties,  rights,  and  concessions,  truly  and  peaceably,  freely  and  quietly, 
fully  and  wholly  to  themselves  and  their  heirs,  of  us  and  our  heirs,  in  all  things 
and  places,  forever,  as  is  aforesaid.  It  is  also  sworn,  as  well  on  our  part  as 
on  the  part  of  the  barons,  that  all  the  things  aforesaid  shall  be  observed  in  good 
faith  and  without  evil  intent.  Given  under  our  hand,  in  the  presence  of  the 
witnesses  above  named,  and  many  others,  in  the  meadow  called  Rumingmeade, 
between  Windsor  and  Staines,  the  15th  day  of  June,  in  the  17th  year  of  our 
reign. 


APPENDIX  D. 

PETITION  OF  RIGHT.    (1628  A.  D.) 

THE  PETITION  EXHIBITED  TO  HIS  MAJESTY  BY  THE  LORDS 
SPIRITUAL  AND  TEMPORAL  AND  COMMONS.  IN  THIS 
PRESENT  PARLIAMENT  ASSEMBLED,  CONCERNING  DIVERS 
RIGHTS  AND  LIBERTIES  OF  THE  SUBJECTS,  WITH  THE 
KING'S  MAJESTY'S  ROYAL  ANSWER  THEREUNTO  IN  FULL 
PARLIAMENT. 

To  the  King's  Most  Excellent  Majesty. 

Humbly  shew  unto  our  Sovereign  Lord  the  King,  the  Lords  spiritual 
and  temporal,  and  Commons  in  Parliament  assembled,  that  whereas  it  is 
declared  and  enacted  be  a  statute  made  in  the  time  of  the  reign  of  King 
Edward  I.,  commonly  called  'Statutum  de  tallagio  non  concedendo,'  that  no 
tallage  or  aid  shall  be  laid  or  levied  by  the  King  or  his  heirs  in  this  realm, 
without  the  good  will  and  assent  of  the  archbishops,  bishops,  earls,  barons, 
knights,  burgesses,  and  other  the  freemen  of  the  Commonalty  of  this  realm; 
and  by  authority  of  Parliament  holden  in  the  five-and-twentieth  year  of  the 
reign  of  King  Edward  III.,  it  is  declared  and  enacted,  that  from  henceforth 
no  person  shall  be  compelled  to  make  any  loans  to  the  King  against  his  will, 
because  such  loans  were  against  reason  and  the  franchise  of  the  land ;  and  by 
other  laws  of  this  realm  it  is  provided,  that  none  should  be  charged  by  any 
charge  or  imposition  called  a  benevolence,  nor  by  such  like  charge;  by  which 
statutes  before  mentioned  and  other  the  good  laws  and  statutes  of  this  realm, 
your  subjects  have  inherited  this  freedom,  that  they  should  not  be  compelled 
to  contribute  to  any  tax,  tallage,  aid,  or  other  like  charge  not  set  by  common 
consent  in  Parliament. 

II.  Yet  nevertheless,  of  late,  divers  commissions  directed  to  sundry 
commissioners  in  several  counties,  with  instructions,  have  issued;  by  means 
whereof  your  people  have  been  in  divers  places  assembled,  and  required  to 
lend  certain  sums  of  money  unto  your  Majesty,  and  many  of  them,  upon 
their  refusal  so  to  do,  have  had  an  oath  administered  unto  them  not  war- 
rantable by  the  laws  or  statutes  of  this  realm,  and  have  been  constrained  to 
become  bound  to  make  appearance  and  give  utterance  before  your  Privy 
Council  and  in  other  places,  and  others  of  them  have  been  therefore  im- 
prisoned, confined,  and  sundry  other  ways  molested  and  disquieted;  and 
divers  other  charges  have  been  laid  and  levied  upon  your  people  in  several 
counties  by  lord  lieutenants,  deputy  lieutenants,  commissioners  for  musters, 
justices  of  peace  and  others,  by  command  or  direction  of  your  Majesty,  or 
your  Privy  Council,  against  the  laws  and  free  customs  of  the  realm. 

III.  And  whereas  also  by  the  statute  called  'The  Great  Charter  of 
the  Liberties  of  England,'  it  is  declared  and  enacted,  that  no  freeman  may 
be  taken  or  imprisoned,  or  be  disseised  of  his  freehold  or  liberties,  or  his  free 

Vol.  1—19  289 


290  APPENDIX   D. 

customs,  or  be  outlawed  or  exiled,  or  in  any  manner  destroyed,  but  by  the 
lawful  judgment  of  his  peers,  or  by  the  law  of  the  land. 

IV.  And  in  the  eighth-and-twentieth  year  of  the  reign  of  King  Edward 
III,  it  was  declared  and  enacted  by  authority  of  Parliament,  that  no  man, 
of  what  estate  or  condition  that  he  be,  should  be  put  out  of  his  land  or  tene- 
ments, not  taken,  nor  imprisoned,  nor  disherited,  nor  put  to  death  without 
being  brought  to  answer  by  due  process  of  law. 

V.  Nevertheless,  against  the  tenor  of  the  said  statutes,  and  other 
the  good  laws  and  statutes  of  your  realm  to  that  end  provided,  divers  of  your 
subjects  have  of  late  been  imprisoned  without  any  cause  shewed;  and  when 
for  their  deliverance  they  were  brought  before  justices  by  your  Majesty's 
writs  of  habeas  corpus,  there  to  undergo  and  receive  as  the  court  should  order, 
and  their  keepers  commanded  to  certify  the  causes  of  their  detamer,  no  cause 
wras  certified,  but  that  they  were  detained  by  your  Majesty's  special  com- 
mand, signified  by  the  lords  of  your  Privy  Council,  and  yet  were  returned 
back  to  several  prisons,  without  being  charged  with  anything  to  which  they 
might  answer  according  to  law. 

VI.  And  whereas  of  late  great  companies  of  soldiers  and  mariners 
have  been  dispersed  into  divers  counties  of  the  realm,  and  the  inhabitants, 
against  their  wills,  have  been  compelled  to  receive  them  into  their  houses, 
and  there  to  suffer  them  to  sojourn,  against  the  laws  and  customs  of  this 
realm,  and  to  the  great  grievance  and  vexation  of  the  people. 

VII.  And  whereas  also  by  authority  of  Parliament,  in  the  five-and- 
twentieth  year  of  the  reign  of  King  Edward  III.,  it  is  declared  and  enacted 
that  no  man  should  be  forejudged  of  life  or  limb  against  the  form  of  the  Great 
Charter  and  the  law  of  the  land;  and  by  the  said  Great  Charter  and  other 
the  laws  and  statutes  of  this  your  realm,  no  man  ought  to  be  adjudged  to 
death  but  by  the  laws  established  in  this  your  realm,  either  by  the  customs  of 
the  same  realm,  or  by  Acts  of  Parliament;  and  whereas  no  offender  of  what  kind 
soever  is  exempted  from  the  proceedings  to  be  used,  and  the  punishments 
to  be  inflicted  by  the  laws  and  statutes  of  this  your  realm;  nevertheless,  of 
late  times,  divers  commissions  under  your  Majesty's  great  seal  have  issued 
forth,  by  which  certain  persons  have  been  assigned  and  appointed  commis- 
sioners with  power  and  authority  to  proceed  within  the  land,  according  to  the 
justice  of  marshal  law,  against  such  soldiers  or  mariners,  or  other  dissolute 
persons  joining  with  them,  as  should  committ  any  murder,  robbery,  felony, 
mutiny,  or  other  outrage  or  misdemeanor  whatsoever,  and  by  such  summary 
course  or  other  as  is  agreeable  to  martial  law,  and  as  is  used  in  armies  in  time 
of  war,  to  proceed  to  the  trial  and  condemnation  of  such  offenders,  and  them 
to  cause  to  be  executed  and  put  to  death  according  to  the  law  martial. 

VIII.  By  pretext  where  of  some  of  your  Majesty's  subjects  have  been 
by  some  of  the  said  commissioners  put  to  death,  when  and  where,  if  by  the 
laws  and  statutes  of  the  land  they  had  deserved  death,  by  the  same  laws  and 
statutes  also  they  might,  and  by  no  other,  ought  to  have  been  judged  and 
executed. 

IX.  And  also  sundry  grievous  offenders,  by  colour  thereof  claiming 
an  exemption,  have  escaped  the  punishments  due  to  them  by  the  laws  and 
statutes  of  this  your  realm,  by  reason  that  divers  of  your  officers  and  ministers 


PETITION   OF  RIGHT.  291 

of  justice  have  unjustly  refused  or  forborne  to  proceed  against  such  offenders 
according  to  the  same  laws  and  statutes,  upon  pretence  that  the  said  offenders 
were  punishable  only  by  martial  law,  and  by  authority  of  such  commissions 
as  aforesaid,  which  commissions,  and  all  other  of  like  nature,  are  wholly  and 
directly  contrary  to  the  said  laws  and  statutes  of  this  your  realm. 

X.  They  do  therefore  humbly  pray  your  most    excellent  Majesty 
that  no  man  hereafter  be  compelled  to  make  or  yield  any  gift,  loan,  benevol- 
ence, tax,  or  such  like  charge,  without  common  consent,  by  Act  of  Parliament; 
and  that  none  be  called  to  make  answer,  or  to  take  such  oath,  or  to  give 
attendance,  or  be  confined,  or  otherwise  molested,  or  disquieted  concerning 
the  same,  or  for  refusal  thereof;  and  that  no  freeman,  in  any  BUch  manner 
as  is  before  mentioned,  be  imprisoned  or  detained;  and  that  your  Majesty 
would  be  pleased  to  remove  the  said  soldiers  and  mariners,  and  that  your 
people  may  not  be  so  burthened  in  time  to  come;  and  that  the  aforesaid  com- 
missions, for  proceeding  by  martial  law,  may  be  revoked  and  annulled;  and 
that  hereafter  no  commissions  of  like  nature  may  issue  forth  to  any  person  or 
persons  whatsoever  to  be  executed  as  aforesaid,  lest  by  colour  of  them  any 
of  your  Majesty's  subjects  be  destroyed  or  put  to  death  contrary  to  the  laws 
and  franchise  of  the  land. 

XI.  All  of  which  they  most  humbly  pray  of  your  most  excellent 
Majesty  as  their  rights  and  liberties,  according  to  the  laws  and  statutes  of 
this  realm;  and  that  your  Majesty  would  also  vouchsafe  to  declare  that  the 
awards,  doings,  and  proceedings,  to  the  prejudice  of  your  people  in  any  of  the 
premises,  shall  not  be  drawn  hereafter  into  consequence  or  example;  and  that 
your  Majesty  would  be  also  graciously  pleased,  for  the  further  comfort  and 
safety  of  your  people,  to  declare  your  royal  will  and  pleasure,  that  in  the  things 
aforesaid  all  your  officers  and  ministers  shall  serve  you  according  to  the  laws 
and  statutes  of  this  realm,  as  they  tender  the  honour  of  your  Majesty,  and 
the  prosperity  of  this  kingdom. 

Qua  quidem  petitione  lectd  et  plenius  intellectd  per  dictum  dominum 
regem  taliter  est  responsum  in  pleno  parliamento,  viz.,  Soit  droit  fait  comme 
est  desire". 


APPENDIX  E. 

THE  BILL  OF  RIGHTS.— (1689  A.  D.) 

AN  ACT  FOR  DECLARING  THE  RIGHTS  AND  LIBERTIES  OF  THE 
SUBJECT,  AND  SETTLING  THE  SUCCESSION  OF  THE  CROWN. 

Whereas  the  Lords  Spiritual  and  Temporal,  and  Commons,  assembled 
at  Westminster,  lawfully,  fully,  and  freely  representing  all  the  estates  of 
the  people  of  this  realm,  did,  upon  the  thirteenth  day  of  February,  in  the  year 
of  our  Lord  one  thousand  six  hundred  eighty-eight,  present  unto  their  Majes- 
ties, then  called  and  known  by  the  names  and  styles  of  William  and  Mary, 
Prince  and  Princess  of  Orange,  being  present  in  their  proper  persons,  a  certain 
declaration  in  writing,  made  by  the  said  Lords  and  Commons,  in  the  words 
following:  viz, — 

Whereas  the  late  King,  James  II,  by  the  assistance  of  divers  evil 
counsellors,  judges,  and  ministers  employed  by  him,  did  endeavor  to  sub- 
vert and  extirpate  the  Protestant  religion,  and  the  laws  and  liberties  of  this 
kingdom: — 

1.  By  assuming  and  exercising  a  power  of  dispensing  with  and  sus- 
pending of  laws,  and  the  execution  of  laws,  without  consent  of  Parliament. 

2.  By  committing  and  prosecuting  divers  worthy  prelates,  for  humbly 
petitioning  to  be  excused  from  concurring  to  the  said  assumed  power. 

3.  By  issuing  and  causing  to  be  executed  a  commission  under  the 
Great  Seal,  for  erecting  a  court,  called  the  Court  of  Commissioners  for  Ecclesi- 
astical Causes. 

4.  By  levying  money  for  and  to  the  use  of  the  Crown,  by  pretence 
of  prerogative,  for  other  time,  and  in  other  manner  than  the  same  was  granted 
by  Parliament. 

5.  By  raising  and  keeping  a  standing  army  within  this  kingdom 
in  time  of  peace,  without  consent  of  Parliament,  and  quartering  soldiers 
contrary  to  law. 

6.  By  causing  several  good  subjects,  being  Protestants,  to  be  dis- 
armed at  the  same  time  when  Papists  were  both  armed  and  employed,  con- 
trary to  law. 

7.  By  violating  the  freedom  of  election  of  members  to  serve  in  Parlia- 
ment. 

8.  By  prosecutions  in  the  Court  of  King's  Bench,  for  matters  and 
causes  cognizable  only  in  Parliament;    and  by  divers  other  arbitrary  and 
illegal  courses. 

9.  And  whereas  of  late  years,  partial,  corrupt,  and  unqualified  persons 
have  been  returned  and  served  on  juries  in  trials,  and  particularly  divers 
juror  intrials  for  high  treason,  which  were  not  freeholders. 

10.  And  excessive  bail  hath  been  required  of  persons  committed 

293 


294  APPENDIX   E. 

in  criminal  cases,  to  elude  the  benefit  of  the  laws  made  for  the  liberty  of  the 
subjects. 

11.  And  excessive  fines  have  been  imposed;    and  illegal  and  cruel 
punishments  inflicted. 

12.  And  several  grants  and  promises  made  of  fines  and  forfeitures, 
before  any  conviction  or  judgment  against  the  persons  upon  whom  the  same 
were  to  be  levied. 

All  which  are  utterly  and  directly  contrary  to  the  known  laws  and 
statutes,  and  the  freedom  of  this  realm. 

And  whereas  the  said  late  King  James  II,  having  abdicated  the  govern- 
ment, and  the  throne  being  thereby  vacant,  his  Highness  the  Prince  of  Orange 
(whom  it  hath  pleased  Almighty  God  to  make  the  glorious  instrument  of  de- 
livering this  kingdom  from  popery  and  arbitrary  power)  did  (by  the  advice 
of  the  Lords  Spiritual  and  Temporal  and  divers  principal  persons  of  the 
Commons)  cause  letters  to  be  written  to  the  Lords  Spiritual  and  Temporal, 
being  Protestants,  and  other  letters  to  the  several  counties,  cities,  universities, 
boroughs  and  cinque-ports,  for  the  choosing  of  such  persons  to  represent  them, 
as  were  of  right  to  be  sent  to  Parliament,  to  meet  and  sit  at  Westminster 
upon  the  two-and-twentieth  day  of  January,  in  this  year  one  thousand  six 
hundred  eighty  and  eight,  in  order  to  such  an  establishment,  as  that  their 
religion,  laws  and  liberties  might  not  be  in  danger  of  being  subverted;  upon 
which  letters,  elections  have  been  accordingly  made. 

And  thereupon  the  said  Lords  Spiritual  and  Temporal,  and  Commons, 
pursuant  to  their  respective  letters  and  elections,  being  now  assembled  in  a 
full  and  free  representation  of  this  nation,  taking  into  their  most  serious 
consideration  the  best  means  for  attaining  the  ends  aforesaid,  do  in  the 
first  place  (as  their  ancestors  in  like  case  have  usually  done)  for  the  vindicating 
and  asserting  their  ancient  rights  and  liberties,  declare: — 

1.  That  the  pretended  power  of  suspending  of  laws,  or  the  execution 
of  laws,  by  regal  authority,  without  consent  of  Parliament  is  illegal. 

2.  That  the  pretended  power  of  dispensing  with  laws,  or  the  execution 
of  laws  by  regal  authority,  as  it  hath  been  assumed,  and  exercised  of  late,  is 
illegal. 

3.  That  the  commission  for  erecting  the  late  Court  of  Commissioners 
for  Ecclesiastical  Causes,  and  all  other  commissions  and  courts  of  like  nature, 
are  illegal  and  pernicious. 

4.  That  levying  money  for  or  to  the  use  of  the  Crown,  by  pretence 
and  prerogative  without  grant  of  Parliament,  for  longer  time  or  in  other 
manner  than  the  same  is  or  shall  be  granted,  is  illegal. 

5.  That  it  is  the  right  of  the  subjects  to  petition  the  King,  and  all  com- 
mitments and  prosecutions  for  such  petitioning  are  illegal. 

6.  That  the  raising  or  keeping  a  standing  army  within  the  Kingdom 
in  time  of  peace,  unless,  it  be  with  the  consent  of  Parliament  is  against  law. 

7.  That  the  subjects  which  are  Protestants,  may  have  arms  for 
their  defence  suitable  to  their  conditions,  and  as  allowed  by  law. 

8.  That  elections  of  members  of  Parliament  ought  to  be  free. 

9.  That  the  freedom  of  speech,  and  debates  or  proceedings  in  Parlia- 
ment, ought  not  to  be  impeached  or  questioned  in  any  court  or  place  out 
of  Parliament. 


THE   BILL   OF   RIGHTS.  295 

10.  That  excessive  bail  ought  not  to  be  required,  nor  excessive  fines 
imposed;  nor  cruel  and  unusual  punishments  inflicted. 

11.  That  jurors  ought  to  be  duly  impanelled  and  returned,  and  jurors 
which  pass  upon  men  in  trials  for  high  treason  ought  to  be  freeholders. 

12.  That  all  grants  and  promises  of  fines  and  forfeitures  of  particular 
persons  before  conviction,  are  illegal  and  void. 

13.  And  that  for  redress  of  all  grievances,  and  for  the  amending, 
strengthening,  and  preserving  of  the  laws,  Parliaments  ought  to  be  held  fre- 
quently. 

And  they  do  claim,  demand,  and  insist  upon  all  and  singular  the  pre- 
mises, as  their  undoubted  rights  and  liberties,  and  that  no  declaration,  judg- 
ments, doings  or  proceedings,  to  the  prejudice  of  the  people  in  any  of  the  said 
premises,  ought  in  any  wise  to  be  drawn  hereafter  into  consequence  or  example. 

To  which  demand  of  their  rights,  they  are  particularly  encouraged  by 
the  declaration  of  his  Highness  the  Prince  of  Orange,  as  being  the  only  means 
for  obtaining  a  full  redress  and  remedy  therein. 

Having  therefore  an  entire  confidence  that  his  said  Highness  the 
Prince  of  Orange  will  perfect  the  deliverance  so  far  advanced  by  him,  and  will 
still  preserve  them  from  the  violation  of  their  rights,  which  they  have  been  here 
asserted,  and  from  all  other  attempts  upon  their  religion,  rights,  and  liberties: 

II.  The  said  Lords  Spiritual  and  Temporal,  and  Commons,  assembled 
at  Westminster,  do  resolve  that  William  and  Mary,  Prince  and  Princess  of 
Orange  be,  and  be  declared,  King  and  Queen  of  England,  France  and  Ireland, 
and  the  dominions  thereunto  belonging,  to  hold  the  Crown  and  royal  dignity 
of  the  said  kingdoms  and  dominions  to  them  the  said   Prince  and  Princess 
during  their  lives,  and  the  life  of  the  survivor  of  them;   and  that  the  sole 
and  full  exercise  of  the  regal  power  be  only  in,  and  executed  by,  the  said  Prince 
of  Orange,  in  the  names  of  the  said  Prince  and  Princess,  during  their  joint 
lives;  and  after  their  deceases,  the  said  Crown  and  royal  dignity  of  the  said 
kingdoms  and  dominions  to  be  to  the  heirs  of  the  body  of  the  said  Princess; 
and  for  default  of  such  issue  to  the  Princess  Anne  of  Denmark,  and  the  heirs 
of  her  body;  and  for  the  default  of  such  issue  to  the  heirs  of  the  body  of  the 
said  Prince  of  Orange.    And  the  Lords  Spiritual  and  Temporal,  and  Commons, 
do  pray  the  said  Prince  and  Princess  to  accept  the  same  accordingly. 

III.  And  that  the  oaths  hereafter  mentioned  be  taken  by  all  persons 
of  whom  the  oaths  of  allegiance  and  supremacy  might  be  required  by  law, 
instead  of  them;    and  that  the  said  oaths  of  allegiance  and  supremacy  be 
abrogated. 

I,  A.  B.,  do  sincerely  promise  and  swear,  That  I  will  be  faithful  and 
bear  true  allegiance  to  their  Majesties  King  William  and  Queen  Mary: 

So  help  me  God. 

I,  A.  B.,  do  swear,  That  I  do  from  my  heart  abhor,  detest,  and  adjure 
as  impious  and  heretical,  that  damnable  doctrine  and  position,  that  Princes 
excommunicated  or  deprived  by  the  Pope,  or  any  authority  of  the  See  of 
Rome,  may  be  deposed  or  murdered  by  their  subjects,  or  any  other  whatso- 
ever. And  I  do  declare,  that  no  foreign  prince,  person,  prelate,  state,  or 
potentate  hath,  or  ought  to  have,  any  jurisdiction,  power,  superiority,  pre- 
eminence, or  authority  ecclesiastical  or  spiritual,  within  this  realm: 

So  help  me  God. 


296  APPENDIX  E. 

IV.  Upon  which  their  said  Majesties  did  accept  the  crown  and  royal 
dignity  of  the  kingdoms  of  England,  France,  and  Ireland,  and  the  dominions 
thereunto  belonging,  according  to  the  resolution  and  desire  of  the  said  Lords 
and  Commons  contained  in  the  said  declaration. 

V.  And  thereupon  their  Majesties  were  pleased,  that  the  said  Lords 
Spiritual  and  Temporal,  and  Commons,  being  the  two  Houses  of  Parliament, 
should  continue  to  sit,  and  with  their  Majesties'  royal  concurrence  make 
effectual  provision  for  the  settlement  of  the  religion,  laws  and  liberties  of 
this  kingdom,  so  that  the  same  for  the  future  might  not  be  in  danger  again 
of  being  subverted;    to  which  the  said  Lords  Spiritual  and  Temporal,  and 
Commons,  did  agree  and  proceed  to  act  accordingly. 

VI.  Now  in  pursuance  of  the  premises,  the  said  Lords  Spiritual  and 
Temporal,  and  Commons,  in  Parliament  assembled,  for  the  ratifying,  confirm- 
ing, and  establishing  the  said  declaration,  and  the  articles,  clauses,  matters, 
and  things  therein  contained,  by  the  force  of  a  law  made  in  due  form  by 
authority  of  Parliament,  do  pray  that  it  may  be  declared  and  enacted,  That 
all  and  singular  the  rights  and  liberties  asserted  and  claimed  in  the  said 
declaration,  are  the  true,  ancient,  and  indubitable  rights  and  liberties  of  the 
people  of  this  kingdom,  and  so  shall  be  esteemed,  allowed,  adjudged,  deemed, 
and  taken  to  be,  and  that  all  and  every  the  particulars  aforesaid  shall  be 
firmly  and  strictly  holden  and  observed,  as  they  are  expressed  in  the  said 
declaration;    and   all   officers,  and   ministers  whatsoever  shall   serve  their 
Majesties  and  their  successors  according  to  the  same  in  all  times  to  come. 

VII.  And  the  said  Lords  Spiritual  and  Temporal,  and  Commons, 
seriously  considering  how  it  hath  pleased  Almighty  God,  in  his  marvellous 
providence,  and  merciful  goodness  to  this  nation,  to  provide  and  preserve  their 
said  Majesties'  royal  persons  most  happily  to  reign  over  us  upon  the  throne  of 
their  ancestors,  for  which  they  render  unto  Him  from  the  bottom  of  their 
hearts  their  humblest  thanks,  and  praises,  do  truly,  firmly,  assuredly,  and 
in  the  sincerity  of  their  hearts,  think,  and  do  hereby  recognize,  acknowl- 
edge and  declare,  that  King  James  II,  having  abdicated  the  government,  and 
their  Majesties  having  accepted  the  Crown  and  royal  dignity  as  aforesaid, 
their  said  Majesties  did  become,  were,  are,  and  of  sovereign  right  ought  to 
be,  by  the  laws  of  this  realm,  our  sovereign  liege  lord  and  lady,  King  and 
Queen  of  England,  France,  and  Ireland,  and  the  dominions  thereunto  belonging 
in  and  to  whose  princely  persons  the  royal  State,  Crown,  and  dignity  of 
the  said  realms,  with  all  honours,  styles,  titles,  regalities,  prerogatives,  powers, 
jurisdictions  and  authorities  to  the  same  belonging  and  appertaining,  are  most 
fully,  rightfully,  and  entirely  invested  and  incorporated,  united  and  annexed. 

VIII.  And  for  preventing  all  questions  and  divisions  in  this  realm,  by 
reason  of  any  pretended  titles  to  the  Crown,  and  for  preserving  a  certainty 
in  the  succession  thereof,  in  and  upon  which  the  unity,  peace,  and  tran- 
quillity, and  safety  of  this  nation  doth,  under  God,  wholly  consist  and  depend, 
the  said  Lords  Spiritual  and  Temporal,  and  Commons,  do  beseech  their 
Majesties  that  it  may  be  enacted,  established  and  declared,  that  the  Crown 
and  legal  government  of  the  said  kingdoms  and  dominions,  with  all  and 
singular  the  premises  thereunto  belonging  and  appertaining,  shall  be  and 
continued  to  their  said  Majesties,  and  the  survivor  of  the  other,  during  their 


THE   BILL   OF   RIGHTS.  297 

lives,  and  the  life  of  the  survivor  of  them.  And  that  the  entire,  perfect, 
and  full  exercise  of  the  regal  power  and  government  be  only  in,  and  executed 
by,  his  Majesty,  in  the  names  of  both  their  Majesties  during  their  joint  lives; 
and  after  their  deceases  the  said  Crown  and  premises  shall  be  and  remain  to 
the  heirs  of  the  body  of  her  Majesty;  and  for  default  of  such  issue,  to  her  Royal 
Highness  the  Princess  Anne  of  Denmark,  and  the  heirs  of  her  body;  and 
for  default  of  such  issue,  to  the  heirs  of  the  body  of  his  said  Majesty:  And 
thereunto  the  said  Lords  Spiritual  and  Temporal,  and  Commons  do,  hi  the 
name  of  all  the  people  aforesaid,  most  humbly  and  faithfully  submit  them- 
selves, their  heirs  and  posterities  for  ever;  and  do  faithfully  promise,  That 
they  will  stand  to,  maintain,  and  defend  their  said  Majesties,  and  also  the 
limitation  and  succession  of  the  Crown  herein  specified  and  contained,  to  the 
utmost  of  their  powers,  with  their  lives,  and  estate,  against  all  persons  what- 
soever that  shall  attempt  anything  to  the  contrary. 

IX.  And  Whereas  it  hath  been  found  by  experience,  that  it  is  incon- 
sistent with  the  safety  and  welfare  of  this  Protestant  kingdom,  to  be  governed 
by  a  Popish  Prince,  or  by  any  King  or  Queen  marrying  »  Papist,  the  said 
Lords  Spiritual  and  Temporal,  and  Commons,  do  further  pray  that  it  may 
be  enacted,  That  all  and  every  persons  that  is,  are,  or  shall  be  reconciled 
to,  or  shall  hold  communion  with,  the  See  or  Church  of  Rome,  or  shall  profess 
the  Popish  religion,  or  shall  marry  a  Papist,  shall  be  excluded,  and  be  forever 
incapable  to  inherit,  possess,  or  enjoy  the  Crown  and  government  of  this  realm, 
and  Ireland,  and  the  dominions  thereunto  belonging,  or  any  part  of  the  same, 
or  to  have,  use,  or  exercise  any  regal  power,  authority,  or  jurisdiction  within  the 
same;  and  in  all  and  every  such  case  or  cases  the  people  of  these  realms  shall 
be  and  are  hereby  absolved  of  their  allegiance;  and  the  said  Crown  and 
government  shall  from  time  to  time  descend  to,  and  be  enjoyed  by,  such  person 
or  persons,  being  Protestants,  as  should  have  inherited  and  enjoyed  the  same, 
in  case  the  said  person  or  persons  so  reconciled,  holding  communion,  or  pro- 
fessing, or  marrying  as  aforesaid,  were  naturally  dead. 


APPENDIX  F. 

DECLARATION  OF  INDEPENDENCE. 

In  Congress,  July  4,  1776. 

The  unanimous  declaration  of  the  thirteen  United  States  of  America. 
When  in  the  course  of  human  events,  it  becomes  necessary  for  one  people  to 
dissolve  the  political  bands  which  have  connected  them  with  another,  and  to 
assume  among  the  powers  of  the  earth,  the  separate  and  equal  station  to 
which  the  Laws  of  Nature  and  of  Nature's  God  entitles  them,  a  decent  respect 
to  the  opinions  of  mankind  requires  that  they  should  declare  the  causes  which 
impel  them  to  the  separation. 

We  hold  these  truths  to  be  self-evident,  that  all  men  are  created  equal, 
that  they  are  endowed  by  their  Creator  with  certain  unalienable  Rights,  that 
among  these  are  Life,  Liberty  and  the  pursuit  of  Happiness.  That  to  secure 
these  rights,  Governments  are  instituted  among  Men,  deriving  their  just 
powers  from  the  consent  of  the  governed,  That  whenever  any  Form  of  Govern- 
ment becomes  destructive  of  these  ends,  it  is  the  Right  of  the  People  to  alter 
or  to  abolish  it,  and  to  institute  new  Government,  laying  its  foundation  on 
such  principles  and  organizing  its  powers  in  such  form,  as  to  them  shall  seem 
most  likely  to  effect  their  Safety  and  Happiness.  Prudence,  indeed,  will 
dictate  that  Governments  long  established  should  not  be  changed  for  light 
and  transient  causes;  and  accordingly  all  experience  hath  shewn,  that 
mankind  are  more  disposed  to  suffer,  while  evils  are  sufferable,  than  to  right 
themselves  by  abolishing  the  forms  to  which  they  are  accustomed.  But 
when  a  long  train  of  abuses  and  usurpations,  pursuing  invariably  the  same 
Object  evinces  a  design  to  reduce  them  under  absolute  Despotism,  it  is  their 
right,  it  is  their  duty,  to  throw  off  such  Government,  and  to  provide  new 
Guards  for  their  future  security.  Such  has  been  the  patient  sufferance  of 
these  Colonies;  and  such  is  now  the  necessity  which  constrains  them  to  alter 
their  former  Systems  of  Government.  The  history  of  the  present  King  of 
Great  Britain  is  a  history  of  repeated  injuries  and  usurpations,  all  having 
in  direct  object  the  establishment  of  an  absolute  Tyranny  over  these  States. 
To  prove  this,  let  Facts  be  submitted  to  a  candid  world. 

He  has  refused  his  Assent  to  Laws,  the  must  wholesome  and  necessary 
for  the  public  good. 

He  has  forbidden  his  Governors  to  pass  Laws  of  immediate  and  pressing 
importance,  unless  suspended  in  their  operation  till  his  Assent  should  be 
obtained;  and  when  so  suspended,  he  has  utterly  neglected  to  attend  to 
them. 

He  has  refused  to  pass  other  laws  for  the  accommodation  of  large 
districts  of  people,  unless  those  people  would  relinquish  the  right  of  Repre- 
sentation in  the  Legislature,  a  right  inestimable  to  them  and  formidable 
to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual,  uncom- 

209 


300  APPENDIX   F. 

fortable,  and  distant  from  the  depository  of  their  public  Records,  for  the 
Bole  purpose  of  fatiguing  them  into  compliance  with  his  measures. 

He  has  dissolved  Representative  Houses  repeatedly,  for  opposing 
with  manly  firmness  his  invasions  on  the  rights  of  the  people. 

He  has  refused  for  a  long  time,  after  such  dissolutions,  to  cause  others 
to  be  elected;  whereby  the  Legislative  powers,  incapable  of  Annihilation, 
have  returned  to  the  People  at  large  for  their  exercise;  the  State  remaining 
in  the  meantime  exposed  to  all  the  dangers  of  invasion  from  without,  and 
convulsions  within. 

He  has  endeavored  to  prevent  the  population  of  these  States;  for 
that  purpose  obstructing  the  Laws  of  Naturalization  of  Foreigners;  refusing 
to  pass  others  to  encourage  their  migrations  hither,  and  raising  the  conditions 
of  new  Appropriations  of  Lands. 

He  has  obstructed  the  Administration  of  Justice,  by  refusing  his  Assent 
to  Laws  for  establishing  Judiciary  Powers. 

He  has  made  Judges  dependent  on  his  Will  alone,  for  the  tenure  of  their 
offices,  and  the  amount  and  payment  of  their  salaries. 

He  has  erected  a  multitude  of  New  Offices,  and  sent  hither  swarms  of 
Officers  to  harass  our  people,  and  eat  out  their  substance. 

He  has  kept  among  us,  in  times  of  peace,  Standing  Armies  without 
the  Consent  of  our  legislature. 

He  has  affected  to  render  the  Military  independent  of  and  superior 
to  the  Civil  power. 

He  has  combined  with  others  to  subject  us  to  a  jurisdiction  foreign 
to  our  constitution,  and  unacknowledged  by  our  laws;  giving  his  Assent  to 
their  Acts  of  pretended  Legislation: 

For  quartering  large  bodies  of  armed  troops  among  us: 

For  protecting  them,  by  a  mock  Trial,  from  punishment  for  any  Murders 
which  they  should  commit  on  the  inhabitants  of  these  States: 

For  cutting  off  our  Trade  with  all  parts  of  the  world: 

For  imposing  Taxes  on  us  without  our  Consent: 

For  depriving  us  in  many  cases  of  the  benefits  of  Trial  by  jury: 

For  transporting  us  beyond  Seas  to  be  tried  for  pretended  offences: 

For  abolishing  the  free  System  of  English  Laws  in  a  neighboring 
Province,  establishing  therein  an  Arbitrary  government,  and  enlarging  its 
Boundaries  so  as  to  render  it  at  once  an  example  and  fit  instrument  for  intro- 
ducing the  same  absolute  rule  into  these  Colonies: 

For  taking  away  our  Charters,  abolishing  our  most  valuable  Laws, 
and  altering  fundamentally  the  Forms  of  our  Governments: 

For  suspending  our  own  Legislatures,  and  declaring  themselves  invested 
with  power  to  legislate  for  us  in  all  cases  whatsoever. 

He  has  abdicated  Government  here,  by  declaring  us  out  of  his  Protection 
and  waging  War  against  us. 

He  has  plundered  our  seas,  ravaged  our  Coasts,  burnt  our  towns,  and 
destroyed  the  lives  of  our  people. 

He  is  at  this  time  transporting  large  Armies  of  foreign  Mercenaries  to 
complete  the  works  of  death,  desolation  and  tyranny,  already  begun  with 
circumstances  of  Cruelty  and  perfidy  scarcely  paralleled  in  the  most  barbarous 
ages,  and  totally  unworthy  the  Head  of  a  civilized  nation. 


DECLARATION  OF  INDEPENDENCE.       301 

He  has  constrained  our  fellow-Citizens  taken  captive  on  the  high  Seas 
to  bear  Arms  against  their  Country,  to  become  the  executioners  of  their  friends 
and  Brethren,  or  to  fall  themselves  by  their  Hands. 

He  has  excited  domestic  insurrections  amongst  us,  and  has  endeavored 
to  bring  on  the  inhabitants  of  our  frontiers,  the  merciless  Indian  Savages, 
whose  known  rule  of  warfare,  is  an  undistinguished  destruction  of  all  ages, 
sexes  and  conditions. 

In  every  stage  of  these  Oppressions  We  have  Petitioned  for  Redress 
in  the  most  humble  terms:  Our  repeated  Petitions  have  been  answered 
only  by  repeated  injury.  A  Prince,  whose  character  is  thus  marked  by  every 
act  which  may  define  a  tyrant,  is  unfit  to  be  the  ruler  of  a  free  people. 

Nor  have  We  been  wanting  in  attentions  to  our  British  brethren.  We 
have  warned  them  from  time  to  time  of  attempts  by  their  legislature  to 
extend  an  unwarrantable  jurisdiction  over  us.  We  have  reminded  them  of 
the  circumstances  of  our  emigration  and  settlement  here.  We  have  appealed 
to  their  native  justice  and  magnanimity,  and  we  have  conjured  them  by  the 
ties  of  our  common  kindred  to  disavow  these  usurpations,  which  would  inevita- 
bly interrupt  our  connections  and  correspondence.  They,  too,  have  been  deaf 
to  the  voice  of  justice  and  of  consanguinity.  We  must,  therefore,  acquiesce 
in  the  necessity,  which  denounces  our  Separation,  and  hold  them,  as  we  hold 
the  rest  of  mankind,  Enemies  in  War,  in  Peace  Friends. 

We,  Therefore,  the  Representatives  of  the  United  States  of  America,  in 
General  Congress,  Assembled,  appealing  to  the  Supreme  Judge  of  the  world 
for  the  rectitude  of  our  intentions,  do,  in  the  Name,  and  by  authority  of  the 
good  People  of  these  Colonies,  solemnly  Publish  and  Declare,  That  these 
United  Colonies  are,  and  of  Right,  ought  to  be  Free  and  Independent  States; 
that  they  are  absolved  from  all  Allegiance  to  the  British  Crown,  and  that  all 
political  connection  between  them  and  the  State  of  Great  Britain,  is  and 
ought  to  be  totally  dissolved ;  and  that  as  Free  and  Independent  States,  they 
have  full  Power  to  levy  War,  conclude  Peace,  contract  Alliances,  establish 
Commerce,  and  to  do  all  other  Acts  and  Things  which  Independent  States 
may  of  right  do.  And  for  the  support  of  this  Declaration,  with  a  firm  reliance 
on  the  protection  of  Divine  Providence,  We  mutually  pledge  to  each  other 
our  Lives,  our  Fortunes,  and  our  sacred  Honor. 

(The  foergoing  declaration  was,  by  order  of  Congress,  engrossed,  and 
signed  by  the  following  members.)  JOHN  HANCOCK. 

New  Hampshire — Josiah  Bartlett,  Wm.  Whipple,  Matthew  Thornton. 

Massachusetts  Bay. — Saml.  Adams,  John  Adams,  Robt.  Treat  Paine, 
Elbridge  Gerry. 

Rhode  Island,  etc. — Step.  Hopkins,  William  Ellery. 

Connecticut — Roger  Sherman,  Sam'el  Huntington,  Wm.  Williams, 
Oliver  Wolcott. 

New  York — Wm.  Floyd,  Phil.  Livingston,  Frans.  Lewis,  Lewis  Morris. 

New  Jersey — Richd.  Stockton,  Jno.  Witherspoon,  Fras.  Hopkinson, 
John  Hart,  Abra.  Clark. 

Pennsylvania — Robt.  Morris,  Benjamin  Rush,  Benja.  Franklin,  John 
Morton,  Geo.  Clymer,  Jas.  Smith,  Geo.  Taylor,  James  Wilson,  Geo.  Ross. 

Delaware — Caesar  Rodney,  Geo.  Read,  Theo.  M'Kean. 


302  APPENDIX  F. 

Maryland — Samuel  Chase,  Wm.  Paca,  Thos.  Stone,  Charles  Carroll  of 

Carrolton. 

Virginia— George  Wythe,  Richard  Henry  Lee,  Th.  Jefferson,  Benja. 
Harrison,  Thos.  Nelson,  Jr.,  Francis  Lightfoot  Lee,  Carter  Braxton. 

North  Carolina — Wm.  Hooper,  Joseph  Hewes,  John  Penn. 

South  Carolina— Edward  Rutledge,  Thos.  Heyward,  Jr.,  Thomas  Lynch, 
Jr.,  Arthur  Middleton. 

Georgia— Button  Gwinnett,  Lyman  Hall,  Geo.  Walton. 


APPENDIX  G. 

ARTICLES  OF  CONFEDERATION,  1781-1788. 

Articles  of  Confederation  and  Perpetual  Union  between  the  States  of  New 
Hampshire,  Massachusetts  Bay,  Rhode  Island  and  Providence  Plantations, 
Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  and  Georgia. 

ARTICLE  I.  The  style  of  this  confederacy  shall  be,  "The  United  States  of 
America." 

ART.  II.  Each  State  retains  its  sovereignty,  freedom,  and  independence, 
and  every  power,  jurisdiction,  and  right,  which  is  not  by  this  confederation 
expressly  delegated  to  the  United  States  in  Congress  assembled. 

ART.  III.  The  said  States  hereby  severally  enter  into  a  firm  league  of 
friendship  with  each  other,  for  their  common  defence,  the  security  of  their 
liberties,  and  their  mutual  and  general  welfare,  binding  themselves  to  assist 
each  other  against  all  force  offered  to,  or  attacks  made  upon  them,  or  any  of 
them,  on  account  of  religion,  sovereignty,  trade,  or  any  other  pretence  what- 
ever. 

ART.  IV.  The  better  to  secure  and  perpetuate  mutual  friendship  and  inter- 
course among  the  people  of  the  different  States  in  this  Union,  the  free  inhab- 
itants of  each  of  these  States,  paupers,  vagabonds,  and  fugitives  from  justice 
excepted,  shall  be  entitled  to  all  privileges  and  immunities  of  free  citizens 
in  the  several  States;  and  the  people  of  each  State  shall  have  free  ingress 
and  regress  to  and  from  any  other  State,  and  shall  enjoy  therein  all  the  pri- 
vileges of  trade  and  commerce,  subject  to  the  same  duties,  impositions,  and 
restrictions,  as  the  inhabitants  thereof  respectively;  provided  that  such 
restrictions  shall  not  extend  so  far  as  to  prevent  the  removal  of  property  im- 
ported into  any  State,  to  any  other  State  of  which  the  owner  is  an  inhabitant; 
provided,  also,  that  no  imposition,  duties,  or  restriction,  shall  be  laid  by  any 
State  on  the  property  of  the  United  States,  or  either  of  them. 

If  any  person  guilty  of,  or  charged  with,  treason,  felony,  or  other  high 
misdemeanor  in  any  State,  shall  flee  from  justice,  and  be  found  in  any  of 
the  United  States,  he  shall,  upon  demand  of  the  governor  or  executive  power 
of  the  State  from  which  he  fled,  be  delivered  up,  and  removed  to  the  State 
having  jurisdiction  of  his  offence. 

Full  faith  and  credit  shall  be  given,  in  each  of  these  States,  to  the  records, 
acts,  and  judicial  proceedings  of  the  courts  and  magistrates  of  every  other 
State. 

ART.  V.  For  the  more  convenient  management  of  the  general  interests  of 
the  United  States,  delegates  shall  be  annually  appointed  in  such  manner  as 
the  legislature  of  each  State  shall  direct,  to  meet  in  Congress  on  the  first 
Monday  in  November,  in  every  year,  with  a  power  reserved  to  each  State  to 
recall  its  delegates,  or  any  of  them,  at  any  time  within  the  year,  and  to  send 
others  in  their  stead  for  the  remainder  of  the  year. 

303 


304  APPENDIX   G. 

No  State  shall  be  represented  in  Congress  by  less  than  two,  nor  by  more 
than  seven  members;  and  no  person  shall  be  capable  of  being  a  delegate  for 
more  than  three  years,  in  any  term  of  six  years;  nor  shall  any  person,  being 
a  delegate,  be  capable  of  holding  any  office  under  the  United  States,  for  which 
he,  or  another  for  his  benefit,  receives  any  salary,  fees,  or  emolument  of  any 
kind. 

Each  State  shall  maintain  its  own  delegates  in  any  meeting  of  the  States, 
and  while  they  act  as  members  of  the  committee  of  the  States. 

In  determining  questions  in  the  United  States,  in  Congress  assembled, 
each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  impeached  or 
questioned  in  any  court  or  place  out  of  Congress;  and  the  members  of  Con- 
gress shall  be  protected  in  their  persons  from  arrests  and  imprisonments 
during  the  time  of  their  going  to  and  from,  and  attendance  on  Congress,  except 
for  treason,  felony,  or  breach  of  the  peace. 

ART.  VI.  No  State,  without  the  consent  of  the  United  States,  in  Congress 
assembled,  shall  send  any  embassy  to,  or  receive  any  embassy  from,  or  enter 
into  any  conference,  agreement,  alliance,  or  treaty,  with  any  king,  prince,  or 
state;  nor  shall  any  person  holding  any  office  of  profit  or  trust  under  the  United 
States,  or  any  of  them,  accept  of  any  present,  emolument,  office,  or  title  of 
any  kind  whatever,  from  any  king,  prince,  or  foreign  state;  nor  shall  the 
United  States,  in  Congress  assembled,  or  any  of  them,  grant  any  title  of 
nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation,  or  alliance 
whatever  between  them,  without  the  consent  of  the  United  States,  in  Congress 
assembled,  specifying  accurately  the  purposes  for  which  the  same  is  to  be 
entered  into,  and  how  long  it  shall  continue. 

No  States  shall  lay  any  imposts  or  duties  which  may  interfere  with  any 
stipulations  in  treaties  entered  into  by  the  United  States,  in  Congress  assem- 
bled, with  any  king,  prince,  or  state,  in  pursuance  of  any  treaties  already 
proposed  by  Congress  to  the  courts  of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  State,  except 
such  number  only  as  shall  be  deemed  necessary  by  the  United  States,  in  Con- 
gress assembled,  for  the  defence  of  such  State  or  its  trade;  nor  shall  any  body 
of  forces  be  kept  up  by  any  State,  in  time  of  peace,  except  such  number  only 
as,  in  the  judgment  of  the  United  States,  in  Congress  assembled,  shall  be 
deemed  requisite  to  garrison  the  forts  necessary  for  the  defence  of  such  State; 
but  every  State  shall  always  keep  up  a  well  regulated  and  disciplined  militia, 
sufficiently  armed  and  accoutred,  and  shall  provide  and  constantly  have  ready 
for  use,  in  public  stores,  a  due  number  of  field-pieces  and  tents,  and  a  proper 
quantity  of  arms,  ammunition,  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the  United  States, 
in  Congress  assembled,  unless  such  State  be  actually  invaded  by  enemies,  or 
shall  have  received  certain  advice  of  a  resolution  being  formed  by  some 
nation  of  Indians  to  invade  such  State,  and  the  danger  is  so  imminent  as  not 
to  admit  of  a  delay  till  the  United  States,  in  Congress  assembled,  can  be 
consulted;  nor  shall  any  State  grant  commissions  to  any  ships  or  vessels  of 
war,  nor  letters  of  marque  or  reprisal,  except  it  be  after  a  declaration  of  war 


ARTICLES   OF   CONFEDERATION.  305 

by  the  United  States,  in  Congress  assembled,  and  then  only  against  the  king- 
dom or  state,  and  the  subjects  thereof  against  which  war  has  been  so  declared, 
and  under  such  regulations  as  shall  be  established  by  the  United  States,  in 
Congress  assembled,  unless  such  State  be  infested  by  pirates,  in  which  case 
vessels  of  war  may  be  fitted  out  for  that  occasion,  and  kept  so  long  as  the 
danger  shall  continue,  or  until  the  United  States,  in  Congress  assembled, 
shall  determine  otherwise. 

ART.  VII.  When  land  forces  are  raised  by  any  State  for  the  common 
defence,  all  officers  of  or  under  the  rank  of  colonel  shall  be  appointed  by  the 
legislature  of  each  State  respectively  by  whom  such  forces  shall  be  raised,  or 
in  such  manner  as  such  State  shall  direct,  and  all  vacancies  shall  be  filled  up 
by  the  State  which  first  made  the  appointment. 

ART.  VIII.  All  charges  of  war,  and  all  other  expenses  that  shall  be  in- 
curred for  the  common  defence  or  general  welfare,  and  allowed  by  the  United 
States,  in  Congress  assembled,  shall  be  defrayed  out  of  a  common  treasury, 
which  shall  be  supplied  by  the  several  States,  in  proportion  to  the  value  of 
all  land  within  each  State,  granted  to,  or  surveyed  for,  any  person,  as  such 
land  and  the  buildings  and  improvements  thereon  shall  be  estimated  accord- 
ing to  such  mode  as  the  United  States,  in  Congress  assembled,  shall,  from 
time  to  time,  direct  and  appoint.  The  taxes  for  paying  that  proportion  shall 
be  laid  and  levied  by  the  authority  and  direction  of  the  legislatures  of  the 
several  States,  within  the  time  agreed  upon  by  the  United  States,  in  Congress 
assembled. 

ART.  IX.  The  United  States,  in  Congress  assembled,  shall  have  the  sole 
and  exclusive  right  and  power  of  determining  on  peace  and  war,  except  in  the 
cases  mentioned  in  the  sixth  Article;  of  sending  and  receiving  ambassadors; 
entering  into  treaties  and  alliances,  provided  that  no  treaty  of  commerce  shall 
be  made  whereby  the  legislative  power  of  the  respective  States  shall  be  re- 
strained from  imposing  such  imposts  and  duties  on  foreigners,  as  their  own 
people  are  subjected  to,  or  from  prohibiting  the  exportation  or  importation  of 
any  species  of  goods  or  commodities  whatsoever;  of  establishing  rules  for 
deciding,  in  all  cases,  what  captures  on  land  or  water  shall  be  legal,  and  in 
what  manner  prizes  taken  by  land  or  naval  forces  in  the  service  of  the  United 
States  shall  be  divided  or  appropriated;  of  granting  letters  of  marque  and 
reprisal  in  times  of  peace;  appointing  courts  for  the  trial  of  piracies  and 
felonies  committed  on  the  high  seas;  and  establishing  courts  for  receiving 
and  determining  finally  appeals  in  all  cases  of  captures;  provided  that  no 
member  of  Congress  shall  be  appointed  as  judge  of  any  of  the  said  courts. 

The  United  States,  in  Congress  assembled,  shall  also  be  the  last  resort  on 
appeal,  in  all  disputes  and  differences  now  subsisting,  or  that  hereafter  may 
arise  between  two  or  more  States  concerning  boundary,  jurisdiction,  or  any 
other  cause  whatever;  which  authority  shall  always  be  exercised  in  the 
manner  following:  Whenever  the  legislative  or  executive  authority,  or  lawful 
agent  of  any  State  in  controversy  with  another,  shall  present  a  petition  to 
Congress,  stating  the  matter  in  question,  and  praying  for  a  hearing,  notice 
thereof  shall  be  given  by  order  of  Congress  to  the  legislative  or  executive 
authority  of  the  other  State  in  controversy,  and  a  day  assigned  for  the  appear- 
ance of  the  parties  by  their  lawful  agents,  who  shall  then  be  directed  to 
Vol.  1—20 


306  APPENDIX  G. 

appoint,  by  joint  consent,  commissioners  or  judges  to  constitute  a  court  for 
hearing  and  determining  the  matter  in  question;  but  if  they  cannot  agree, 
Congress  shall  name  three  persons  out  of  each  of  the  United  States,  and  from 
the  list  of  such  persons  each  party  shall  alternately  strike  out  one,  the  peti- 
tioners beginning,  until  the  number  shall  be  reduced  to  thirteen;  and  from 
that  number  not  less  than  seven  nor  more  than  nine  names,  as  Congress 
shall  direct,  shall,  in  the  presence  of  Congress,  be  drawn  out  by  lot;  and  the 
persons  whose  names  shall  be  so  drawn,  or  any  five  of  them,  shall  be  com- 
missioners or  judges,  to  hear  and  finally  determine  the  controversy,  so  always  as 
a  major  part  of  the  judges  who  shall  hear  the  cause  shall  agree  in  the  determina- 
tion; and  if  either  party  shall  neglect  to  attend  at  the  day  appointed,  without 
showing  reasons  which  Congress  shall  judge  sufficient,  or  being  present,  shall 
refuse  to  strike,  the  Congress  shall  proceed  to  nominate  three  persons  out  of 
each  State,  and  the  secretary  of  Congress  shall  strike  in  behalf  of  such  party 
absent  or  refusing;  and  the  judgment  and  sentence  of  the  court,  to  be 
appointed  in  the  manner  before  prescribed,  shall  be  final  and  conclusive;  and 
if  any  of  the  parties  shall  refuse  to  submit  to  the  authority  of  such  court, 
or  to  appear  or  defend  their  claim  or  cause,  the  court  shall  nevertheless  pro- 
ceed to  pronounce  sentence  or  judgment,  which  shall  in  like  manner  be  final 
and  decisive;  the  judgment  or  sentence  and  other  proceedings  being  in  either 
case  transmitted  to  Congress,  and  lodged  among  the  acts  of  Congress  for  the 
security  of  the  parties  concerned;  provided,  that  every  commissioner, before 
he  sits  in  judgment,  shall  take  an  oath,  to  be  administered  by  one  of  the 
judges  of  the  supreme  or  superior  court  of  the  State  where  the  cause  shall  be 
tried,  "well  and  truly  to  hear  and  determine  the  matter  in  question,  accord- 
ing to  the  best  of  his  judgment,  without  favour,  affection,  or  hope  of  reward." 
Provided,  also,  that  no  State  shall  be  deprived  of  territory  for  the  benefit  of 
the  United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed  under  differ- 
ent grants  of  two  or  more  States,  whose  jurisdictions,  as  they  may  respect 
such  lands,  and  the  States  which  passed  such  grants,  are  adjusted,  the  said 
grants  or  either  of  them  being  at  the  same  time  claimed  to  have  originated  ante- 
cedent to  such  settlement  of  jurisdiction,  shall,  on  the  petition  of  either  party 
to  the  Congress  of  the  United  States,  be  finally  determined,  as  near  as  may 
be,  in  the  same  manner  as  is  before  prescribed  for  deciding  disputes  respecting 
territorial  jurisdiction  between  different  States. 

The  United  States,  in  Congress  assembled,  shall  also  have  the  sole  and 
exclusive  right  and  power  of  regulating  the  alloy  and  value  of  coin  struck  by 
their  own  authority,  or  by  that  of  the  respective  States;  fixing  the  standard 
of  weights  and  measures  throughout  the  United  States;  regulating  the  trade 
and  managing  all  affairs  with  the  Indians  not  members  of  any  of  the  States; 
provided  that  the  legislative  right  of  any  State,  within  its  own  limits,  be  not 
infringed  or  violated;  establishing  and  regulating  post-offices  from  one  State 
to  another  throughout  all  the  United  States,  and  exacting  such  postage  on 
the  papers  passing  through  the  same  as  may  be  requisite  to  defray  the  expenses 
of  the  said  office;  appointing  all  officers  of  the  land  forces  in  the  service  of 
the  United  States,  excepting  regimental  officers;  appointing  all  the  officers 
of  the  naval  forces,  and  commissioning  all  officers  whatever  in  the  service  of 


ARTICLES   OF   CONFEDERATION.  307 

the  United  States;  making  rules  for  the  government  and  regulation  of  the 
said  land  and  naval  forces,  and  directing  their  operations. 

The  United  States,  in  Congress  assembled,  shall  have  authority  to  appoint 
a  committee,  to  sit  in  the  recess  of  Congress,  to  be  denominated  "A  Committee 
of  the  States,"  and  to  consist  of  one  delegate  from  each  State;  and  to  appoint 
such  other  committees  and  civil  officers  as  may  be  necessary  for  managing 
the  general  affairs  of  the  United  States  under  their  direction;  to  appoint 
one  of  their  number  to  preside,  provided  that  no  person  be  allowed  to  serve 
in  the  office  of  president  more  than  one  year  in  any  term  of  three  years; 
to  ascertain  the  necessary  sums  of  money  to  be  raised  for  the  service  of  the 
United  States,  and  to  appropriate  and  apply  the  same  for  defraying  the 
public  expenses;  to  borrow  money  or  emit  bills  on  the  credit  of  the  United 
States,  transmitting  every  half  year  to  the  respective  States  an  account  of  the 
sums  of  money  so  borrowed  or  emitted;  to  build  and  equip  a  navy;  to  agree 
upon  the  number  of  land  forces,  and  to  make  requisitions  from  each  State  for 
its  quota,  in  proportion  to  the  number  of  white  inhabitants  in  such  State, 
which  requisition  shall  be  binding;  and  thereupon  the  legislature  of  each 
State  shall  appoint  the  regimental  officers,  raise  the  men,  and  clothe,  arm, 
and  equip  them  in  a  soldier-like  manner  at  the  expense  of  the  United  States; 
and  the  officers  and  men  so  clothed,  armed,  and  equipped  shall  march  to  the 
place  appointed,  and  within  the  time  agreed  on  by  the  United  States,  in 
Congress  assembled;  but  if  the  United  States,  in  Congress  assembled,  shall, 
on  consideration  of  circumstances,  judge  proper  that  any  State  should  not 
raise  men,  or  should  raise  a  smaller  number  than  its  quota,  and  that  any 
other  State  should  raise  a  greater  number  of  men  than  the  quota  thereof,  such 
extra  number  shall  be  raised,  officered,  clothed,  armed,  and  equipped  in  the 
same  manner  as  the  quota  of  such  State,  unless  the  legislature  of  such  State 
shall  judge  that  such  extra  number  can  not  be  safely  spared  out  of  the  same, 
in  which  case  they  shall  raise,  officer,  clothe,  arm,  and  equip  as  many  of  such 
extra  number  as  they  judge  can  be  safely  spared,  and  the  officers  and  men  so 
clothed,  armed,  and  equipped  shall  march  to  the  place  appointed  and  within 
the  time  agreed  on  by  the  United  States,  in  Congress  assembled. 

The  United  States,  in  Congress  assembled,  shall  never  engage  in  a  war,  nor 
grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor  enter  into  any 
treaties  or  alliances,  nor  coin  money,  nor  regulate  the  value  thereof,  nor 
ascertain  the  sums  and  expenses  necessary  for  the  defence  and  welfare  of  the 
United  States,  or  any  of  them,  nor  emit  bills,  nor  borrow  money  on  the  credit 
of  the  United  States,  nor  appropriate  money,  nor  agree  upon  the  number  of 
vessels  of  war  to  be  built  or  purchased,  or  the  number  of  land  or  sea  forces  to 
be  raised,  nor  appoint  a  commander-in-chief  of  the  army  or  navy,  unless  nine 
States  assent  to  the  same,  nor  shall  a  question  on  any  other  point,  except  for 
adjourning  from  day  to  day,  be  determined,  unless  by  the  votes  of  a  majority 
of  the  United  States,  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn  to  any  time 
within  the  year,  and  to  any  place  within  the  United  States,  so  that  no  period 
of  adjournment  be  for  a  longer  duration  than  the  space  of  six  months,  and 
shall  publish  the  journal  of  their  proceedings  monthly,  except  such  parts 
thereof  relating  to  treaties,  alliances,  or  military  operations  as  in  their  judg- 


308  APPENDIX   G. 

ment  require  secrecy;  and  the  yeas  and  nays  of  the  delegates  of  each  State 
on  any  question,  shall  be  entered  on  the  journal,  when  ft  is  desired  by  any 
delegate;  and  the  delegates  of  a  State,  or  any  of  them,  at  his  or  their  request, 
shall  be  furnished  with  a  transcript  of  the  said  journal,  except  such  parts  as 
are  above  excepted,  to  lay  before  the  legislatures  of  the  several  States. 

ART.  X.  The  committee  of  the  States,  or  any  nine  of  them,  shall  be 
authorized  to  execute,  in  the  recess  of  Congress,  such  of  the  powers  of 
Congress  as  the  United  States,  in  Congress  assembled,  by  the  consent  of  nine 
States,  shall,  from  time  to  time,  think  expedient  to  vest  them  with;  pro- 
vided that  no  power  be  delegated  to  the  said  committee,  for  the  exercise 
of  which,  by  the  Articles  of  Confederation,  the  voice  of  nine  States,  in  the 
Congress  of  the  United  States  assembled,  is  requisite. 

ART.  XI.  Canada  acceding  to  this  Confederation,  and  joining  in  the 
measures  of  the  United  States,  shall  be  admitted  into,  and  entitled  to  all  the 
advantages  of  this  Union;  but  no  other  colony  shall  be  admitted  into  the 
same  unless  such  admission  be  agreed  to  by  nine  States. 

ART.  XII.  All  bills  of  credit  emitted,  moneys  borrowed,  and  debts  con- 
tracted by  or  under  the  authority  of  Congress,  before  the  assembling  of  the 
United  States,  in  pursuance  of  the  present  Confederation,  shall  be  deemed  and 
considered  as  a  charge  against  the  United  States,  for  payment  and  satisfaction 
whereof  the  said  United  States  and  the  public  faith  are  hereby  solemnly 
pledged. 

ART.  XIII.  Every  State  shall  abide  by  the  determinations  of  the  United 
States,  in  Congress  assembled,  on  all  questions  which  by  this  Confederation 
are  submitted  to  them.  And  the  Articles  of  this  Confederation  shall  be 
inviolably  observed  by  every  State,  and  the  Union  shall  be  perpetual;  nor 
shall  any  alteration  at  any  time  hereafter  be  made  in  any  of  them,  unless  such 
alteration  be  agreed  to  in  a  Congress  of  the  United  States,  and  be  afterwards 
confirmed  by  the  legislatures  of  every  State. 

And  whereas  it  hath  pleased  the  great  Governor  of  the  world  to  incline  the 
hearts  of  the  legislatures  we  respectively  represent  in  Congress  to  approve  of, 
and  to  authorize  us  to  ratify  the  said  Articles  of  Confederation  and  perpetual 
Union,  Know  ye,  that  we,  the  undersigned  delegates,  by  virtue  of  the  power 
and  authority  to  us  given  for  that  purpose,  do,  by  these  presents,  in  the 
name  and  in  behalf  of  our  respective  constituents,  fully  and  entirely  ratify 
and  confirm  each  and  every  of  the  said  Articles  of  Confederation  and  perpetual 
Union,  and  all  and  singular  the  matters  and  things  therein  contained.  And 
we  do  further  solemnly  plight  and  engage  the  faith  of  our  respective  con- 
stituents, that  they  shall  abide  by  the  determinations  of  the  United  States, 
in  Congress  assembled,  on  all  questions  which  by  the  said  Confederation  are 
submitted  to  them;  and  that  the  Articles  thereof  shall  be  inviolably  observed 
by  the  States  we  respectively  represent,  and  that  the  Union  shall  be  per- 
petual. In  witness  whereof  we  have  hereunto  set  our  hands  in  Congress. 
Done  at  Philadelphia,  in  the  State  of  Pennsylvania,  the  ninth  day  of  July, 
in  the  year  of  our  Lord  1778,  and  in  the  third  year  of  the  Independence  of 
America. 

[These  Articles  were  not  ratified  by  all  the  States  until  1st  March  1781, 
when  the  delegates  of  Maryland,  the  latest  in  ratifying,  signed  for  her.] 


APPENDIX  H. 

THE  VIRGINIA  PLAN. 

1.  Resolved,  that  the  articles  of  Confederation  ought  to  be  so  corrected 
and  enlarged  as  to  accomplish  the  objects  proposed  by  their  institution; 
namely,  common  defense,  security  of  liberty,  and  general  warfare. 

2.  Resolved,  therefore,  that  the  rights  of  suffrage  in  the  National 
Legislature  ought  to  be  proportioned  to  the  quotas  of  contribution,  or  to 
the  number  of  free  inhabitants,  as  the  one  or  the  other  rule  may  seem  best  in 
different  cases. 

3.  Resolved,  that  the  National  Legislature  ought  to  consist  of  two 
branches. 

4.  Resolved,  that  the  members  of  the  first  branch  of  the  National  Legis- 
lature ought  to  be  elected  by  the  people  of  the  several  states  every 

for  the  term  of ;   to  be  of  the  age  of years  at  least; 

to  receive  liberal  stipends  by  which  they  may  be  compensated  for  the  devotion 
of  their  time  to  the  public  service;   to  be  ineligible  to  any  office  established 
by  a  particular  state,  or  under  the  authority  of  the  United  States,  except 
those  peculiarly  belong  to  the  functions  of  the  first  branch,  during  the  term 

of  service,  and  for  the  space  of after  its  expiration;  to  be  incapable 

of  re-election  for  the  space  of after  the  expiration  of  their  term 

of  service,  and  to  be  subject  to  recall. 

5.  Resolved,  that  the  members  of  the  second  branch  of  the  national 
Legislature  ought  to  be  elected  by  those  of  the  first,  out  of  a  proper  number 

of  persons  nominated  by  the  individual  legislatures,  to  be  of  the  age  of 

years  at  least;  to  hold  their  offices  for  a  term  sufficient  to  ensure  their  inde- 
pendency;   to  receive  liberal  stipend,  by  which  they  may  be  compensated  for 
the  devotion  of  their  time  to  the  public  service;   and  to  be  ineligible  to  any 
office  established  by  a  particular  state,  or  under  the  authority  of  the  United 
States,  except  those  peculiarly  belonging  to  the  functions  of  the  second 

branch,  during  the  term  of  service;   and  for  the  space  of after 

the  expiration  thereof. 

6.  Resolved,  that  each  branch  ought  to  possess  the  right  of  originating 
acts;    that  the  National  Legislature  ought  to  be  empowered  to  enjoy  the 
legislative  rights  vested  in  Congress  by  the  Confederation,  and  moreover 
to  legislate  in  all  cases  to  which  the  separate  states  are  incompetent,  or  in 
which  the  harmony  of  the  United  States  may  be  interrupted  by  the  exercise 
of  individual  legislation;  to  negative  all  laws  passed  by  the  several  states  con- 
travening, in  the  opinion  of  the  National  Legislature,  the  Articles  of  Union 
or  any  treaty  subsisting  under  the  authority  of  the  Union;  and  to  call  forth 
the  force  of  the  Union  against  any  member  of  the  Union  failing  to  fulfil  its 
duty  under  the  Articles  thereof. 

7.  Resolved,  that  a  National  Executive  be  instituted;   to  be  chosen 
by  the  National  Legislature  for  the  term  of ;  to  receive  punctually, 

300 


310  APPENDIX   H. 

at  stated  times,  a  fixed  compensation  for  the  services  rendered,  in  which  no 
increase  nor  diminution  shall  be  made,  so  as  to  affect  the  magistracy  existing 
at  the  time  of  increase  or  diminution;  and  to  be  ineligible  a  second  time; 
and  that,  besides  a  general  authority  to  execute  the  national  laws,  it  ought 
to  enjoy  the  executive  rights  vested  in  Congress  by  the  Confederation. 

8.  Resolved,  that  the  Executive,  and  a  convenient  number  of  the  na- 
tional Judiciary,  ought  to  compose  a  Council  of  Revision,  with  authority  to 
examine  every  act  of  the  National  Legislature,  before  it  shall  operate,  and 
every  act  of  a  particular  Legislature  before  a  negative  thereon  shall  be  final; 
and  that  the  dissent  of  the  said  Council  shall  amount  to  a  rejection,  unless 
the  act  of  the  National  Legislature  be  again  passed,  or  that  of  a  particular 

Legislature  be  again  negatived  by of  the  members  of  each  branch. 

•  9.  Resolved,  that  a  National  Judiciary  be  established;  to  consist 
of  one  or  more  supreme  tribunals,  and  of  inferior  tribunals  to  be  chosen 
by  the  National  Legislature;  to  hold  their  offices  during  good  behaviour, 
and  to  receive  punctually,  at  stated  times,  fixed  compensation  for  their 
services,  in  which  no  increase  or  diminution  shall  be  made,  so  as  to  affect 
the  persons  actually  in  office  at  the  same  time  of  such  increase  or  diminution. 
That  the  jurisdiction  of  the  inferior  tribunals  shall  be  to  hear  and  deterime, 
in  the  first  instance,  and  of  the  supreme  tribunal  to  hear  and  determine, 
in  the  dernier  resort,  all  piracies  and  felonies  on  the  high  seas,  captures  from 
an  enemy;  cases  in  which  foreigners,  or  citizens  of  other  states,  applying  to 
such  jurisdiction,  may  be  interested;  or  which  respect  the  collection  of  the 
national  revenue;  impeachments  of  any  national  officers,  and  questions 
which  may  involve  the  national  peace  and  harmony. 

10.  Resolved,  that  provisions  ought  to  be  made  for  the  admission  of 
states  lawfully  arising  within  the  limits  of  the  United  States,  whether  from 
a  voluntary  junction  of  government  and  territory,  or  otherwise,  with  the 
consent  of  a  number  of  voices  in  the  National  Legislature  less  than  the  whole. 

11.  Resolved,  that  a  republican  government,  and  the  territory  of  each 
state,  except  in  the  instance  of  a  voluntary  junction  of  government  and 
territory,  ought  to  be  guaranteed  by  the  United  States  to  each  state. 

12.  Resolved,  that  provision  ought  to  be  made  for  the  continuance  of 
Congress  and  their  authorities  and  privileges,  until  a  given  day  after  the 
reform  of  the  Articles  of  Union  shall  be  adopted,  and  for  the  completion  of  all 
their  engagements. 

13.  Resolved,  that  provision  ought  to  be  had  for  the  amendment  of 
the  Articles  of  Union,  whensoever  it  shall  seem  necessary;    and  that  the 
assent  of  the  National  Legislature  ought  not  to  be  required  thereto. 

14.  Resolved,  that  the  legislative,  executive,  and  judiciary  powers, 
within  the  several  states  ought  to  be  bound  by  oath  to  support  the  Articles 
of  Union. 

15.  Resolved,  that  the  amendments  which  shall  be  offered  to  the  Con- 
federation, by  the  Convention,  ought  at  a  proper  time  or  times,  after  the 
approbation  of  Congress,  to  be  submitted  to  an  assembly  or  assemblies  of 
representatives,  recommended  by  the  several  Legislatures,  to  be  expressly 
chosen  by  the  people  to  consider  and  decide  thereon, 


APPENDIX  I. 

THE  NEW  JERSEY  PLAN. 

1.  Resolved,  that  the  Articles  of  Confederation  ought  to  so  be  revised, 
corrected  and  enlarged,  as  to  render  the  Federal  Constitution  adequate 
to  the  exigencies  of  government,  and  the  preservation  of  the  Union. 

2.  Resolved,  that  in  addition  to  the  powers  vested  in  the  United  States 
in  Congress,  by  the  present  existing  Articles  of  Confederation,  they  be  author- 
ized to  pass  acts  for  raising  a  revenue,  by  levying  of  duties  on  all  goods  or 
merchandises  of  foreign  growth  or  manufacture,  imported  into  any  part  of 
the  United  States;    by  stamps  on  paper,  vellum  or  parchment;    and  by  a 
postage  on  all  letters  or  packages  passing  through  the  general  post-office; 
to  be  applied  to  such  Federal  purposes  as  they  shall  deem  proper  and  expedient; 
to  make  rules  and  regulations  for  the  collection  thereof;  and  the  same,  from 
time  to  time,  alter  and  amend  in  such  manner  as  they  shall  think  proper; 
to  pass  acts  for  the  regulation  of  trade  and  commerce,  as  well  with  foreign 
nations  as  with  each  other;   provided  that  all  punishments,  fines,  forfeitures 
and  penalties,  to  be  incurred  for  contravening  such  acts,  rules  and  regulations, 
shall  be  adjudged  by  the  common  law  Judiciaries  of  the  state  in  which  any 
offence  contrary  to  the  true  intent  and  meaning  of  such  acts,  rules,  and 
regulations,  shall  have  been  committed  or  perpetrated,  with  liberty  of  com- 
mencing in  the  first  instance  all  suits  and  prosecutions  for  that  purpose  in  the 
Superior  common  law  Judiciary  in  such  state;  subject,  nevertheless,  for  the 
correction  of  all  errors,  both  in  law  and  fact,  in  rendering  judgment,  to  an 
appeal  to  the  Judiciary  of  the  United  States. 

3.  Resolved,  that  whenever  requisitions  shall  be  necessary,  instead  of 
the  rule  for  making  requisitions  mentioned  in  the  Articles  of  Confederation, 
the  United  States  in  Congress  be  authorized  to  make  such  requisitions  in 
proportion  to  the  whole  number  of  white  and  other  free  citizens  and  inhabitants 
of  every  age,  sex,  and  condition,  including  those  bound  to  servitude  for  a 
term  of  years,  and  three-fifths  of  all  other  persons  not  comprehended  in  the 
foregoing  description,  except  Indians  not  paying  taxes;  that,  if  such  requisi- 
tions be  not  complied  with,  in  the  time  specified  therein,  to  direct  the  collection 
thereof  in  the  non-complying  states;  and  for  that  purpose  to  devise  and  pass 
acts  directing  and  authorizing  the  same;  provided,  that  none  of  the  powers 
hereby  vested  in  the  United  States  in  Congress,  shall  be  exercised  without  the 

consent  of  at  least states;  and  in  that  proportion,  if  the  number 

of  confederated  states  should  hereafter  be  increased  or  diminished. 

4.  Resolved,  that  the  United  States  in  Congress  be  authorized  to  elect 

a  Federal  Executive,  to  consist  of persons,  to  continue  in  office 

for  the  term  of  years;    to  receive  punctually,  at  stated  times, 

a  fixed  compensation  for  their  services,  in  which  no  increase  nor  diminution 
shall  be  made  so  as  to  affect  the  persons  composing  the  Executive  at  the 
time  of  such  increase  or  diminution;  to  be  paid  out  of  the  Federal  treasury, 

311 


312  APPENDIX  I. 

to  be  incapable  of  holding  any  other  office  or  appointment  during  their  time 

of  service,  and  for years  thereafter;  to  be  ineligible  a  second  time; 

and  removable  by  Congress,  on  application  by  a  majority  of  the  Executives 
of  the  several  States;  that  the  Executive,  besides  their  general  authority  to 
execute  the  Federal  acts,  ought  to  appoint  all  Federal  officers  not  otherwise 
provided  for,  and  to  direct  all  military  operations;  provided,  that  none  of  the 
persons  composing  the  Federal  Executive  shall,  on  any  occasion,  take  com- 
mand of  any  troops  so  as  personally  to  conduct  any  military  enterprise, 
as  General  or  in  any  other  capacity. 

5.  Resolved,  that  a  Federal  Judiciary  be  established,  to  consist  of  a 
supreme  tribunal,  the  Judges  of  which  to  be  appointed  by  the  Executive, 
and  to  hold  offices  during  good  behaviour;   to  receive  punctually,  at  stated 
times,  a  fixed  compensation  for  their  services,  in  which  no  increase  nor  diminu- 
tion shall  be  made  so  as  to  affect  the  persons  actually  in  office  at  the  time  of 
such  increase  or  diminution.    That  the  Judiciary  so  established  shall  have 
authority  to  hear  and  determine,  in  the  first  instance,  on  all  impeachments 
of  federal  officers;   and  by  way  of  appeal,  in  the  dernier  resort,  in  all  cases 
touching  the  rights  of  ambassadors;  in  all  cases  of  captures  from  an  enemy; 
in  all  cases  of  piracies  and  felonies  on  the  high  seas;  in  all  cases  in  which  for- 
eigners may  be  interested;   in  the  construction  of  any  treaty  or  treaties,  or 
which  may  arise  on  any  of  the  acts  for  the  regulation  of  trade,  or  the  collection 
of  the  Federal  revenue;   that  none  of  the  Judiciary  shall,  during  the  time 
they  remain  in  office,  be  capable  of  receiving  or  holding  any  other  office  or 
appointment  during  their  term  of  service,  or  for thereafter. 

6.  Resolved,  that  all  acts  of  the  United  States  in  Congress,  made  by 
virtue  and  in  pursuance  of  the  powers  hereby,  and  by  the  Articles  of  Confeder- 
ation, vested  in  them,  and  all  treaties,  made  and  ratified  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the  respective  states,  so  far 
forth  as  those  acts  or  treaties  shall  relate  to  the  said  states  or  their  citizens; 
and  that  the  Judiciary  of  the  several  states  shall  be  bound  thereby  in  their 
decisions,  anything  hi  the  respective  laws  of  the  individual  states  to  the  con- 
trary notwithstanding;  and  that  if  any  state,  or  any  body  of  men  in  any  state, 
shall  oppose  or  prevent  the  carrying  into  execution  such  acts  or  treaties,  the 
Federal  Executive  shall  be  authorized  to  call  forth  the  power  of  the  Confeder- 
ated states,  or  so  much  thereof  as  may  be  necessary,  to  enforce  and  compel 
an  obedience  to  such  acts,  or  an  observance  of  such  treaties. 

7.  Resolved,  that  provision  be  made  for  the  admission  of  new  states 
into  the  Union. 

8.  Resolved,  that  the  rule  for  naturalization  ought  to  be  the  same 
in  every  state. 

9.  Resolved,  that  a  citizen  of  one  state  committing  an  offence  in 
another  state  of  the  Union,  shall  be  deemed  guilty  of  the  same  offence  as 
if  it  had  been  committed  by  a  citizen  of  the  state  in  which  the  offence  was 
committed, 


APPENDIX  J. 

ABBREVIATIONS   TO   AMERICAN    AND   ENGLISH    REPORTS. 

Abb.  Adm Abbott's  Admiralty  U.  S.  District  Court. 

Abb.  App.  Dec Abbott's  New  York  Court  of  Appeals. 

Abb.  Dec Abbott's  Decisions,  N.  Y. 

Abb.  N.  C Abbott's  New  Cases. 

Abb.  Pr Abbott's  Practice,  New  York. 

Abb.  Pr.  (N.  S.) Abbott's  Practice,  New  Series,  New  York. 

Abr.  Ca.  Eq Abridgment  of  Cases  in  Equity. 

Abb.  U.  S Abbott,  U.  S.  Circuit  and  District  Courts. 

A.  C Appeal  Court,  Chancery. 

Act Acton's  Reports,   Prize  Causes. 

Adams Adams  (N.  H.). 

Adams  &  Durham.  . .  .Adams  &  Durham's  Real  Est.  Stat.  (111.). 

Add Addison,  Pennsylvania  County  Court. 

Add.  E.  R Addams'  Ecclesiastical  Reports. 

Ad.  &  E.  Adolphus  and  Ellis'  Reports,  K.  B. 

Adm Admiralty. 

Adv.  S.  U.  S Advance  Sheets,  U.  S.  Supreme  Court. 

Aik Aiken's  Vermont. 

Aiken Aiken  (Vt.). 

A.  K.  Marsh A.  K.  Marshall,  Kentucky. 

Al Aleyn's  Reports,  K.  B. 

Ala Alabama. 

Ala.  Sel.  Cas Alabama  Select  Cases,  Alabama. 

Alaska Alaska  Reports. 

Alb.  Law  J Albany  Law  Journal. 

Ale.  Reg.  C Alcock  s  Registry  Cases,  Ireland. 

Alden Alden's  Condensed  Reports,  Pennsylvania. 

Allen Allen,  Massachusetts. 

Al.  &  Nap Alcock  and  Napier,  K.  B.,  Ireland. 

Alison,  Prac Alison's  Practice  Criminal  Law  of  Scotland. 

Alison,  Princ Alison's  Principles  of  ditto. 

Amb Ambler's  Reports,  Chancery. 

Am.  Cr.  Rep American  Criminal  Reports. 

Am.  Dec American  Decisions. 

A.  &  E.  Corp.  Cas.  . .  .American  and  English  Corporation  Case*. 
Amer.  Law  Reg.&Rev.  American  Law  Register  and  Review. 

Amer.  Law  Rev American  Law  Review. 

Am.  Rep American  Reports. 

Am.  St.  Rep American  State  Reporter. 

Annaly Reports,  time  Hardwicke,  K.  B, 

Anst Anstruther's  Reports,  Exch. 

313 


314  APPENDIX  J. 

And Anderson's  Reports,  C.  P. 

Andr Andrew's  Reports,  K.  B. 

Anthon,  N.  P Anthon,  New  York  Cases  at  Nisi  Prius. 

App Appleton  (Me.). 

App.  Cas Appeal  Cases  Eng.  Law  Reports 

App.  D.  C Appeal  Cases  (D.  C.). 

App.  Div Appellate  Division  (N.  Y.). 

App.  &  S Appleton  and  Shepley  (Me.). 

Ariz Arizona. 

Ark Arkansas. 

Arkley Arkley's  Judiciary  Reports,  Scotland. 

Arms.  M.  &  O Armstrong,  Mecartney  and  Ogle's  Reports,  N.  P.,  Ire- 
land. 

Ashm Ashmead,  Pennsylvania. 

Ass Book  of  Assize. 

Asp English  Maritime  Cases  by  Aspinall. 

Atk Atkyn's  Reports,  Chancery. 

Atl Atlantic  Reporter. 

B.  &  A Barnewall  and  Alderson's  Reports,  K.  B. 

B.  &  Ad Barnewall  and  Adolphus'  Reports,  K.  B. 

Bac.  Abr Bacon's  Abridgment. 

Bailey Bailey,  South  Carolina. 

Bailey  Eq Bailey's  Equity,  South  Carolina. 

Baldw Baldwin,  U.  S.  Circuit  Court,  Third  Circuit. 

Ball  Banks Ball's  National  Banks. 

Ball  &  B Ball  &  Beatty 's  Reports,  Chancery,  Ireland. 

Bank  I Bankton's  Institutes  of  the  Law  of  Scotland. 

Bank  Reg Bankruptcy  Register. 

Ban.  &  A Banning  &  Arden's  Patent  Cases. 

Bar.  &  Arn Barren  and  Arnold's  Election  Cases. 

Barb Barbour,  New  York  Supreme  Court. 

Barb.  Ch Barbour,  New  York  Chancery. 

Bark.  (Ark.) Barker  (Ark.). 

Barn.  &  Adol Barnewall  and  Adolphus'  Reports,  K.  B. 

Barn.  &  Aid Barnewall  and  Alderson's  Reports,  K.  B 

Barn.  C Barnardiston's  Reports,  Chancery. 

Barn.  &  Cress Barnewall  and  Cresswell's  Reports,  K.  B. 

Barn.  K.  B Barnardiston's  Reports,  K.  B. 

Barnes Barnes'  Notes,  C.  P. 

Barr Barr  (Pa.). 

Bar.  &  Aust Ban-on  and  Austin's  Election  Cases. 

Batt Batty 's  Reports,  K.  B.,  Ireland. 

Baxt Baxter  (Tenn.). 

Bay Bay,  South  Carolina  Law. 

B.  &  B Broderip  and  Bingham's  Reports,  C.  P. 

B.  &  C Barnewall  and  Cresswell's  Reports,  K.  R 

B.  C.  C Bail  Court  Cases,  Lowndes  and  Maxwell 

B.  or  C.  B Common  Bench. 


ABBREVIATIONS   TO    REPORTS.  315 

B.  C.  R. Bail  Court  Reports,  Saunders  and  Cole. 

Beas Beasley 's  New  Jersey  Equity. 

Beatt Beatty 's  Chancery  Reports,  Ireland. 

Beav Beavan's  Reports,  Rolls  Court. 

Bee  Adm Bee's  Admiralty,  U.  S.  District  Court. 

Bel Bellewe  Reports,  K.  B. 

Bell  App Bell's  Cases  on  Appeal  from  Scotland. 

Bell  C.  (folio  &  8vo) .  .  Bell  (R.),  Cases,  Court  of  Session. 

Bell's  C.  C Bell's  Crown  Cases. 

Ben Benedict,  U.  S.  District  Court. 

Benl.  or  Bendl Benloe  or  Bendloe's  Reports,  K.  B. 

Benl.  &  Dal Benloe  and  Dalison's  Reports,  C.  P. 

Benn Bennett  (CaL). 

Berry.  Ins.  Dig Berryman's  Insurance  Digest. 

Bibb Bibb,  Kentucky. 

Bing Bingham's  Reports,  C.  P. 

Bing.  N.  C Bingham's  New  Cases,  C.  P. 

Binn Binney,  Pennsylvania. 

Bisbee  &  Simond's.  .  .Bisbee  &  Simond's  Board  of  Trade. 

Biss Bissell,  U.  S.  Circuit  Court,  Seventh  Circuit. 

B.  Just Burns'  Justice. 

Bli Bligh's  Reports,  House  of  Lords. 

Bl Blount. 

B.  &  L Browning  and  Lushington's  Admiralty  Rep. 

Black Black,  U.  S.  Supreme  Court. 

Black.,  W Sir  William  Blackstone's  Reports,  K.  B. 

Blackf Blackford,  Indiana. 

Black.,  H Henry  Blackstone's  Reports,  C.  P. 

Bla.  Com Blackstone's  Commentaries. 

Bl.  D.  &  Osb Blackham,  Dundas  &    Osborne's    Reports,    N.    P., 

Ireland. 

Bland Bland,  Maryland  Chancery. 

Blatchf Blatchford,  U.  S.  Circuit  Court,  2nd  Cir. 

Blatch.  &  H.  Adm Blatchford  &  Howland's  Admiralty,  U.  S.   District 

Court. 

Blatchf.  Prize  Gas Blatchford 's  Prize  Cases,  U.  S.  Dist.  Ct. 

Bli.  N.  S Bligh's  Reports,  New  Series. 

Bl.  R Mr.  Justice  Blackstone's  Reports. 

B.  Mon B.  Monroe,  Kentucky. 

B.  N.  C Brook's  New  Cases,  K.  B. 

B.  N.  P Buller'sNisi  Prius. 

Bond Bond,  U.  S.  Circuit  Court,  Sixth  Circuit. 

Bos.  &  Pul Bosanquet  and  Puller's  Reports,  C.  P. 

Bos.  &  P.  N.  R Bosanquet  and  Puller's  New  Reports,  C.  P. 

Bosw Bosworth,  New  York  Superior. 

B.  &.  P Bosanquet  and  Puller's  Reports,  C.  P. 

Br Alexander  Bruce's  Reports,  Court  of  Session. 

Brae , Bracton  de  Legibus. 


316  APPENDIX  J. 

Bradwell Illinois  Appellate. 

Branch Branch  (Fla.). 

Brandenburg's 

Bankr.  Dig Brandenburg's  Bankruptcy  Digest. 

Brayt Brayton,  Vermont. 

Br.  Brev.  Jud.  &  Ent. .  Brownlow,  Brevia  Judicialia,  etc. 

Br.  Bro Brooke,  Browne,  Brownlow. 

Breese Breese,  Illinois  Reports. 

Brev Brevard,  South  Carolina  Law. 

Brews Brewster,  Pennsylvania. 

Bridg Bridgman's  Reports,  C.  P. 

Bridg.  0 Orlando  Bridgman's  Reports,  C.  P. 

Bright Brightly,  Court  of  Nisi  Prius,  Pennsylvania. 

Br.  N.  C Brooke's  New  Cases,  K.  B. 

Bro.  Ab Brooke's  Abridgment. 

Bro.  C.  C Brown's  Chancery  Reports  (Eden  or  Belt). 

Brocken Brockenbrough,  U.  S.  Circuit  Court,  4th  Cir. 

Brock.  &  H Brockenbrough  and  Holmes,  Virginia. 

Brod.  &  B Broderip  and  Bingham's  Reports,  C.  P. 

Bro.  P.  C Brown's  Parliament  Cases. 

Bro.  Stair .Brodie's  Notes  &  Sup.  to  Stair's  Institution,  Scotland. 

Bro.  Supp Brown's  Sup.  Morrison's  Diet.  C't  of  Session. 

Bro.  Syn Brown's  Synop.  of  Decisions,  C't  of  Session. 

Brown Brown's  Judiciary  Reports,  Scotland. 

Brown  Adm Brown's  Admiralty,  U.  S. 

Browne  (Pa.) Browne,  Pennsylvania  Court  of  C.  P. 

Brownl Brownlow  and  Goldsborough's  Reports,  C.  P. 

Brunner  Col.  Gas Brunner's  Collected  Cases,  U.  S. 

B.  &  S Best  and  Smith's  Reports,  Q.  B. 

Buck Buck's  Reports  in  Bankruptcy. 

Bull.  N.  P Buller's  Nisi  Prius. 

Bulst Bulstrode's  Reports,  K.  B. 

Bunb Bunbury 's  Reports,  Ex. 

Burn Burnet,  Wisconsin  Territory. 

Burr Burrow's  Reports,  K.  B. 

Burr.  S.  C Burrow's  Settlement  Cases. 

Busb.  Eq Busbee,  North  Carolina  Equity. 

Busb.  L Busbee,  North  Carolina  Law. 

Bush Bush,  Kentucky. 

C Codex  (Juris  Civilis). 

Ca.  C.  L Cases  in  Crown  Law. 

Cal Callis  or  California. 

Cald Caldecott's  Reports,  K.  B. 

Call Call,  Virginia. 

Calth Calthorpe's  Reports,  K.  B. 

Cam.  &  N Cameron  &  Norwood,  North  Carolina  Law. 

Camp.  N.  P Campbell's  Reports,  Nisi  Prius. 

Cam.  Scacc. Camera,  Scaccarii,  Exchequer  Chamber. 


ABBREVIATIONS  TO  REPORTS.         317 

Ca.  Pra.  K.  B Cases  of  Practice  in  King's  Bench. 

Car.  H.  &.  A Carrow,  Hamerton  and  Allen,  Session  Cases. 

Car.  &  Kir Carrington's  and  Kirwan's  Reports,  N.  P. 

Car.  &  M Carrington  and  Marshman. 

Car.  &  P Carrington  and  Payne's  Reports,  N.  P. 

Carp.  P.  C Carpmael's  Patent  Cases. 

Cart Carter,  Ind. 

Cart Carter's  Reports,  C.  P. 

Gary Gary's  Reports,  Chancery. 

Carth Carthew's  Reports,  K.  B. 

Gas.  C.  R Cases  temp.  Will.  Ill  (12  Mod.). 

Gas.  L.  Eq Cases  in  Law  and  Equity  (10  Mod.). 

Ca.  P.  or  Parl Cases  in  Parliament. 

Cas.  Pra.  C.  P Cases  of  Practice,  Common  Pleas. 

Cas.  Six  Cir Cases  on  the  Six  Circuits,  Ireland. 

Cas.  t.  Talb Cases  time  Talbot,  Chancery. 

Ca.  temp.  F Cases  temp.  Finch. 

Ca.  temp.  Holt Cases  in  the  time  of  Holt,  C.  J.  K.  B. 

Ca.  t.  K Cases  time  King,  Chancery. 

Ca.  temp.  H Cases  time  Hardwicke,  K.  B. 

Cawl Cawlep. 

C.  B Common  Bench  Reports. 

C.  B.,  N.  S Common  Bench  Reports,  New  Series 

C.  C.  A County  Court  Appeals. 

C.C.A U.  S.  Circuit  Court  of  Appeals  Reports 

C.  C Cases  in  Chancery  or  Crown  Cases. 

C.  C Code  Civil  Francais,  or  Code  Napoleon. 

C.  C.  R Crown  Cases  Reserved. 

C.  E.  Green C.  E.  Green,  N.  J. 

Cent.  Dig Century  Digest. 

Cent.  Law  J Central  Law  Journal. 

C.  &  K Carrington  and  Kirwan's  Reporta,  N.  P. 

Ch Chancery  Division. 

Chand Chandler,  N.  H. 

Chand Chandler,  Wisconsin. 

Charlt.  R.  M R.  M.  Charlton  (Ga.). 

Charlt.  T.  U.  P T.  U.  P.  Charlton  (Ga.). 

Chase Chase,  U.  S. 

Ch.  Cas Cases  in  Chancery. 

Ch.  Cas.  Ch Choice  Cases  in  Chancery. 

Cheves  Eq Cheves,  South  Carolina  Equity. 

Cheves Cheves,  South  Carolina  Law. 

D.  Chip D.  Chipman's  Reports,  Vermont. 

N.  Chip N.  Chipman's  Reports,  Vermont. 

Ch.  Pre Precedents  in  Chancery. 

Chit.  Rep Chitty's  Reports,  Bail  Court. 

Cin.  R. .  Cincinnati  Superior  Court  Reporter  (O.). 


318  APPENDIX   J. 

Cin.  Superior  Ct Superior  Court  of  Cincinnati. 

Cir.  Ct.  Dec Circuit  Court  Decisions  (O.). 

City  Ct.  R City  Courts  Reports,  N.  Y. 

City  H.  Rec Rogers,  City  Hall  Recorder,  New  York. 

Civ.  Proc.  R New  York  Civil  Procedure  Reports. 

C.  J.  C Cowper's  Justiciary  Cases. 

Clarke Clarke  (la.). 

Clarke  Ch Clarke,  New  York  Chancery. 

Clay Clayton's  Reports,  York  Assize. 

Cl.  &  Fin Clarke  and  Finnelly  Reports,  House  of  L. 

Cliff Clifford,  U.  S.  Circuit  Court,  First  Circuit. 

C.  L.  P.  Act Common  Procedure  Act. 

C.  L.  R Common  Law  Reports. 

C.  M.  &  R Crompton,  Meeson  and  Roscoe's  Reports,  Ex. 

C.  &  M Crompton  &  Meeson 's  Reports,  Ex. 

Co Coke's  Reports. 

Code  Civ Code  Civil  Francais,  or  Code  Napoleon. 

Cod.  Jur.  Civ Codex  (Juris  Civilis),  Justinian  Codex. 

Code  Nap Code  Napoleon. 

Code  P Code  Penal. 

Code  R.  (N.  S.) Code  Reports,  New  Series,  New  York. 

Code  Rep Code  Reporter  (N.  Y.). 

Col Colorado. 

Col.  App Colorado  Appeals. 

Col.  Gas Coleman's  Cases,  New  York  Law. 

Col.  &  C.  Gas Coleman  &  Caines'  Cases,  New  York  Law. 

Col.  C.  C Collyer's  Chancery  Cases. 

Coldw Coldwell,  Tennessee. 

Cole,  C.  S Colebrooke's  Collateral  Securities. 

Colles Colics'  Cases  in  Parliament. 

Comb Comberbach's  Reports,  K.  B. 

Com Comyn's  Reports,  K.  B.  and  0.  P. 

Com'l.  Gas Commercial  Cases. 

Com.  Dig Comyn's  Digest. 

Com.  Law  Rep Common  Law  Reports. 

Comst New  York  Court  of  Appeals. 

Conf.  (N.  C.) Cameron  &  Norwood's  North  Carolina  Law. 

Con.  &  Law Connor  &  Lawson's  Rep'ts,  Ireland. 

Conn Connecticut. 

Consist Consistory  Reports,  Haggard. 

Const.  (S.  C.) Treadway's  Reports,  S.  Carolina  Constitutional. 

Con.  Sur Connolly's  Surrogate,  New  York. 

Const.  N.  S.  (S.  0.). .  .Mills'  Reports,  South  Carolina  Constitutional. 

Coo.  &  Al Cooke  and  Alcock's  Reports,  K.  B.,  Ireland. 

Cooke Cooke,  Tennessee. 

Coop Cooper  (G.)  Chancery. 

Cooper Cooper's  Reports,  Chancery. 


ABBREVIATIONS   TO   REPORTS.  319 

Co.  P.  C Coke's  Pleas  of  the  Crown  (3  Inst.). 

Corb.  &  D Corbett  and  Daniell,  Election  Cases. 

Co.  Rep Coke's  Reports,  K.  B. 

Cot Cotton. 

Cow Cowen,  New  York  Law. 

Cowp Cowper's  Reports,  K.  B. 

Cox Cox,  Arkansas. 

Cox  C.  C Cox's  Criminal  Cases. 

Cox Cox's  Reports,  Chancery. 

Coxe Coxe,  New  Jersey  Law. 

C.  P Common  Pleas. 

C.  &  P Carrington  and  Payne's  Reports,  N.  P. 

C.  S Court  of  Session,  Scotland. 

C.  Theod Codex  Theodosiani. 

C.  T.  N Cases  in  the  time  of  L.  C.  Northington. 

Cr Craig,  Jus.  Feudale,  Scotland. 

Crabbe Crabbe,  U.  S.  District  Court,  Pennsylvania. 

Cranch Cranch,  U.  S.  Supreme  Court. 

Cranch  C.  Ct Cranch,  U.  S.  Circuit  Court  for  District  of  Columbia. 

Cranch  Pat.  Dec Cranch's  Patent  Decisions  (U.  S.). 

Craw.  &  D.  Ab.  C.  .  .  .Crawford  and  Dix's  Abridged  Cases,  Ireland. 

Craw.  &  D Crawford  and  Dix's  Circuit  Cases,  Ireland. 

Cr.  Law  Mag Criminal  Law  Magazine. 

Cro.  (1,  2,  3) Croke  (Eliz.,  Jam.,  Cha.),  K.  B.  and  C.  P. 

Cro Keilway 's  Reports  by  Serj.  Croke. 

Cromp Crompton's  Courts. 

Cromp.  &  J Crompton  &  Jarvis'  Reports,  Ex. 

Cromp.  &  M Crompton  &  Meeson's  Reports,  Ex. 

Cromp.  M.  &  R Crompton,  Meeson  and  Roscoe's  Reports,  Ex. 

Cr.  &  Ph Craig  and  Phillips,  Chancery. 

Cr.  &  St Craigie  and  Stewart's  Reports,  House  of  L. 

Cru Cruise's  Digest. 

Ct.  Cl Court  of  Claims  (U.  S.). 

Cunn Cunningham's  Reports,  K.  B. 

Curt Curtis,  U.  S.  Circuit  Court,  First  Circuit. 

Callaghan  3C DuCurteis'  Ecclesiastical  Reports. 

Curtis  Fed.  App.  Cts.  .Curtis'  Federal  Appellate  Courts. 

Cush Gushing,  Massachusetts. 

Gush.  Elec.  Cas Gushing,  Story  &  Josselyn's  Election  Cases,  Mass. 

Cushm Cushman,  Mississippi  Reports. 

D Dictum  Digest  (Juris  Civilis). 

Dak Dakota. 

Dal Dallison's  Reports,  C.  P. 

Dall Dallas,  U.  S.  Courts  and  Pennsylvania. 

Dallas Dallas  Styles,  Scotland. 

Dall.  Dec Dalam's  Texas  Decisions. 

Dalr Dalrym pie's  Decisions,  Court  of  Session. 

Daly Daly,  New  York  Common  Pleas. 


320  APPENDIX   J. 

Dan Daniel's  Reports,  Ex.  Eq. 

Dav Davy's  Reports,  Ireland. 

Dana Dana,  Kentucky. 

Dan.  &  LI Dansen  and  Lloyd  Mercantile  Cases. 

Daveis Daveis,  U.  S.  District  Court  of  Maine. 

Day Day,  Connecticut. 

D.  &  C Deacon  and  Chitty,  Bankruptcy  Reports. 

D.  C District  of  Columbia. 

D.  Chip D.  Chipman,  Vermont. 

D.  or  Diet Dictionary  (Morrison's)  Court  of  Session. 

Dea.  &  Sw Deane  and  Swabey 's  Reports,  P.  &  D. 

Deac.  &  Ch Deacon  and  Chitty,  Bankruptcy  Reports. 

Deady Deady,  U.  S.  Courts  Oregon  and  California. 

Dears.  &  B.  C.  C Dearsley  and  Bell's  Crown  Cases. 

Dears.  C.  C Dearsley 's  Crown  Cases. 

Deas  &  And Deas  and  Anderson's  Reports,  Court  of  Sess. 

D.  or  Dig Justiniani  Digestse,  sive  Pandectae. 

De  G De  Gex's  Bankruptcy  Reports. 

De  G.  F.  &  J De  Gex,  Fisher  and  Jones'  Reports,  Chancery. 

De  G.  &  J De  Gex  and  Jones'  Reports,  Chancery. 

De  G.  J.  &  S De  Gex,  Jones  and  Smith's  Reports,  Chan. 

De  G.  M.  &  G De  Gex,  Macnaghten  and  Gordon's  Rep.,  Ch. 

De  G.  &  Sm De  Gex  and  Smale's  Reports,  Chancery. 

Del Delaware. 

Del.  Ch Delaware  Chancery. 

Dem.  Sur Demarest's  Surrogate,  New  York. 

Den.  Cr.  C Denison's  Crown  Cases. 

Desm.  Ch.  L Desmond's  Church  Law. 

Desau Desaussure,  South  Carolina  Equity. 

Dev.  Eq Devereux,  North  Carolina  Equity. 

Dev.  L Devereux,  North  Carolina  Law. 

Dev Devereux,  United  States  Court  of  Claims. 

Dev.  &  B Devereux  &  Battle,  North  Carolina  Law. 

Dev.  &  B.  Eq Devereux  &  Battle,  North  Carolina  Equity. 

Di.  Dy Dyer's  Reports,  K.  B. 

Dick Dickinson,  New  Jersey. 

Dick Dickens'  Reports,  Chancery. 

Dill Dillon,  U.  S.  Circuit  Court,  Eighth  Circuit. 

Dirl Dirleton's  Decisions,  Court  of  Sessions. 

Disney Disney,  Cincinnati  Superior  Court. 

D.  &  L Dowling  and  Lowndes  Bail  Court  Reports. 

D.  &  M Davison   Merivale,   Q.   B.   Reports. 

D.  N.  S Dowling,  New  Series,  Bail  Court  Reports. 

Dod Dodson's  Reports  in  Admiralty. 

Dom.  Proc Domini  Proctor  Cases,  House  of  Lords. 

Dougl.  (Mich.) Douglas,  Michigan  Supreme  Court. 

Doug Douglas'  Reports,  K.  B. 

Dow.  &  C Dow  and  Clark,  House  .of  Lords  Cases. 


ABBREVIATIONS   TO   REPORTS.  321 

Dow.  &  L Bowling  and  Lowndes'  Bail  Court  Reports. 

Dow.  &  Ry Dowling  and  Ryland's  K.  B.  Reports. 

Dow.  &  R.  M.  C Dowling  and  Ryland's  Magistrates'  Cases. 

Dow.  &  Ry.  N.  P Dowling  and  Ryland's  Nisi  Prius. 

Dowl.  P.  C Dowling 's  Practice  Cases. 

D.  &  R Dowling  and  Ryland's  K.  B.  Reports. 

Drew Drewry 's  Reports,  Chancery. 

Drew.  &  Sm Drewry  and  Smale's  Reports,  Chancery. 

Drury Drury 's  Reports,  Chancery,  Ireland. 

Dr.  &  Wai Drury  and  Walsh,  Chancery  Reports,  Ireland. 

Dr.  &  War Drury  and  Warren,  Chancery  Rep.,  Ireland. 

D.  &  S Doctor  and  Student. 

Dudley  (Ga.) Dudley,  Georgia. 

Dudley  (S.  C.) Dudley,  South  Carolina  Law. 

Dudley  Eq Dudley,  South  Carolina  Equity. 

Duer Duer,  New  York  City  Superior  Court. 

Duff I  uff  on  Conveyancing,  Scotland. 

Dugd Dugdale's  Origines. 

Durnf .  &  E Durnford  and  East,  or  Term  Reports,  K.  B. 

Dunlop  or  D Dunlop,  Bell  and  Murray's  Reports. 

Durie Durie's  Reports,  Court  of  Session. 

Dutch Dutcher,  New  Jersey  Law. 

Duv Duvall,  Kentucky. 

E.  &  A Eccles.  and  Admiralty  Reports. 

Eag.  &  Yo Eagle  and  Yonge's  Tithe  Cases. 

East East's  Reports,  K.  B. 

East  P.  C East's  Pleas  of  the  Crown. 

Ecc.  &  Ad Eccles.  and  Admiralty  Reports. 

E.  of  Cov Earl  of  Coventry's  Case. 

Eden Eden's  Rep.  of  Northington's  Cases,  Ch. 

Edg Edgar's  Reports,  Court  of  Session. 

Edicta Edicts  of  Justinian. 

Edm.  Sel.  Cas Edmond's  Select  Cases,  New  York  Law. 

E.  D.  Smith E.  D.  Smith,  New  York. 

Edw.  Ch Edwards,  New  York  Chancery. 

Edw.  A.  R Edward's  Admiralty  Reports. 

El.  B.  &  E Ellis,  Blackburn  and  Ellis 's  Reports,  Q.  B. 

El.  B.  &  S Ellis,  Best  and  Smith's  Reports,  Q.  B. 

El.  &  Bl Ellis  and  Blackburn's  Reports,  Q.  B. 

El.  &  El Ellis  and  Ellis's  Reports,  Q.  B. 

Eng English,  Arkansas. 

Eq.  Ca.  Abr Equity  Cases  Abridged. 

Eq.  Rep Equity  Reports. 

Esp Espinasse's  Rep.  or  Digest,  N.  P. 

Exch.  Rep Welsby,  Hurlstone  and  Gordon's  Reports. 

F Consuetudines  Feudomm. 

F.  or  Fed Federal  Reporter. 

F.  or  Fitz Fitzherbert. 

Vol.  1—21 


322  APPENDIX   J. 

Fac.  Coll Faculty  Collection  of  Reports,  C't  of  Sess 

Fairf Fairfield,  Maine. 

Falc Falconer's  Reports,  Court  of  Session. 

Falc.  &  Fitz Falconer  and  Fitzherbert    Election  Cases 

Fed Federal  Reporter. 

Fed.  Gas Federal  Cases. 

Ferg Ferguson's  Consistory  Reports,  Scotland. 

F.  &  F Foster  and  Finlason's  Reports,  Nisi  Prius. 

Fin Finch's  Reports,  Chancery 

Fish.  Prize  Gas Fisher's  Prize  Cases. 

Fish.  Pat.  Cas Fisher's  Patent  Cases. 

Fish.  Pat.  Rep Fisher's  Patent  Reports. 

Fitz-G Fitz-Gibbon's  Reports,  K.  B. 

Fl Fleta. 

Fla Florida. 

Flan.  &  K Flanagan  and  Kelly's  Reports.  Rolls    Ireland. 

Flip Flippin,  U.  S. 

Fogg Fogg,  New  Hampshire. 

For Forrest's  Reports,  Ex. 

Forb Forbe's  Decisions,  Court  of  Session. 

Forester Cases  time  of  Talbot,  Chancery. 

Fort,  de  Laud Fortescue  de  Laudibus  Anglise  Legum. 

Fortes Fortesque's  Reports,  K.  B. 

Fost Foster,  New  Hampshire. 

Fost.  Forst Foster's  Reports,  Crown  Law. 

Fount Fountainhall  's  Decisions,  Court  of  Session. 

Fox  &  S Fox  and  Smith's  Reports,  K.  B.,  Ireland. 

fr Fragment  or  Excerpt — or  Laws — Pandects. 

Free.  Chy Freeman's  Chancery  Reports. 

Freem.  Ch Freeman,  Mississippi  Chancery. 

Freem.  (111.) Freeman,  Illinois. 

Freem.  K.  B Freeman's  Reports,  K.  B. 

Ga Georgia. 

Ga.  Dec Georgia  Decisions. 

Gaii Gaii  Institutionum  Commentarii  IV. 

Gal.  &  Dav Gale  and  Davison's  Reports,  K.  B. 

Gall Gallison,  U.  S.  Circuit  Court,  First  Circuit. 

George George,  Mississippi. 

Gib.  Cod Gibson's  Codex. 

Gilb.  Exch. Exchequer. 

K.  B King's  Bench. 

R Reports. 

Rem Remainders. 

Us Uses. 

Gif Gifford's  Reports,  Chancery. 

Gil Gilfillan,  Minnesota. 

Gill Gill,  Maryland. 

Gill  &  J Gill  &  Johnson,  Maryland. 


ABBREVIATIONS   TO   REPORTS.  323 

Gilm Oilman,  Illinois. 

Gilm • Gilmour's  Reports,  Court  of  Session. 

Gilmer Gilmer,  Virginia. 

Gilp Gilpin,  U.  S.  District  Court,  Pennsylvania. 

Glanv Glanville  de  Legibus. 

Glassc Glasscock's  Reports  in  Ireland. 

Godb Godbolt's  Reports,  K.  B. 

Golds Goldsborough's  Reports,  K.  B. 

Godol Godolphin. 

Gosf Gosford's  Reports,  Court  of  Session. 

Gow's  N.  P.  C Gow's  Nisi  Prius  Cases. 

Grant  Gas Grant's  Cases,  Pennsylvania. 

Gratt Grattan,  Virginia. 

Gray Gray,  Massachusetts. 

Green  Ch Green,  New  Jersey  Chancery. 

Green,  J.  S Green,  J.  S.  (N.  J.). 

Green  L Green,  New  Jersey  Law 

Green,  W.  H Green,  W.  H.  (N.  J.). 

C.  E.  Green C.  E.  Green,  New  Jersey,  Chancery 

Greene  (Iowa) Greene,  Iowa. 

Greenl Greenleaf,  Maine. 

Gwm Gwillim's  Tithe  Cases. 

Had Earl  of  Haddington's  Reports,  C't  of  Sess. 

Hag.  Adm Haggard's  Admiralty  Reports. 

Hag.  Con Haggard's  Consistory  Reports. 

Hag.  EC Haggard's  Ecclesiastical  Reports. 

Hailes Haile's  Decisions,  Court  of  Session 

Hall Hall,  New  York  Superior  Court. 

Halst Halsted,  New  Jersey  Law. 

Halst .  Ch Halsted,  New  Jersey  Chancery. 

Ham Hammond,  Ohio. 

Hanm Hanmer's  Lord  Kenyon's  Notes,  K.  B. 

Hand Hand,  New  York. 

Handy Handy,  Cincinnati  Superior  Court. 

Hare Harcarse's  Decisions,  Court  of  Session. 

Hard Hardin,  Kentucky  Law. 

Hard Hardre's  Reports,  Ex. 

Hare Hare's  Reports,  Chancery 

Har.  &  G Harris  &  Gill,  Maryland. 

Har.  &  J • Harris  &  Johnson,  Maryland. 

Har.  &  McH Harris  &  McHenry,  Maryland. 

Harp Harper,  South  Carolina  Constitutional  Law 

Harp.  Eq Harper,  South  Carolina  Equity. 

Harr.  (Del.) Harrington,  Delaware. 

Hair.  (Mich.) Harrington,  Michigan  Chancery. 

Harr.  (N.  J.) Harrison,  New  Jersey  Law. 

Harris Harris  (Pa.). 

Ha.  &  Tw Hall  and  Twell's  Chancery  Reports. 


324  APPENDIX   J. 

Harv.  Law  Rev Harvard  Law  Review. 

Hask Haskell,  U.  S. 

Hawaiian  I Hawaiian  Islands. 

Hawk,  P.  C Hawkin's  Pleas  of  the  Crown. 

Hawks Hawks,  North  Carolina  Law. 

Hayes Hayes'  Reports,  Exchequer,  Ireland. 

Hayes  &  J Hayes  &  Jones'  Rept.,  Excheq.,  Ireland. 

Hayw.  (Tenn.) Haywood,  Tennessee. 

Hayw.  (N.  C.) Haywood,  North  Carolina  Law  and  Equity. 

Hayw.  &  H Hayward  &  Hazelton  (D.  C.). 

H.  &  C Hurlstone  and  Coltman's  Reports,  Ex. 

Head Head,  Tennessee. 

Hein Heineccius. 

Heisk Heiskell,  Tennessee. 

Hem.  &  M Hemming  and  Miller,  Chancery. 

Hempst Hempstead,  U.  S.  and  C'ts  in  Ark. 

Hen.  &  M Hening  &  Munford,  Virginia. 

Her Herne. 

Het Hetley's  Reports,  C.  P. 

Hill Hill,  New  York  Law. 

Hill  (S.  C.) Hill,  South  Carolina  Law. 

Hill  Eq Hill,  South  Carolina  Equity. 

Hill  &  D.  Supp Lalor's  Suppl.  to  Hill  &  Denio,  N.  Y.  Law 

Hilt Hilton,  New  York  Common  Pleas. 

Hilly Hillyer,  California. 

H.  L.  Rep.,  Gas Clark  and  Finnelly's  House  of  Lords  Rep.,  N.  S. 

H.  &  N Hurlstone  and  Norman's  Reports,  Ex. 

Hob Hobart's  Reports,  K.  B. 

Hoff m.  Ch Hoffman,  New  York  Chancery. 

Hoffm.  Land  Cas Hoffman's  Land  Cases,  U.  S.  Dist.  (Cal.). 

Hog Hogan's  Reports,  Rolls,  Ireland. 

Holmes Holmes,  U.  S.  Circuit  Court,  First  Circuit. 

Holt Holt's  Reports,  K.  B. 

Holt,  N.  P Holt's  Nisi  Prius  Reports. 

Home  (Clk.) Clerk  Home's  Reports,  Court  of  Session. 

Hope Thomas  Hope's  Reports,  Court  of  Session. 

Hopk.  Ch Hopkins,  New  York  Chancery. 

Hop.  &  C Hopwood  &  Coltman,  Registration  App.  Cas. 

Hop.  &  P Hopwood  &  Philbrick,  Registration  App.  Cas. 

Houst Houston,  Delaware. 

Houst.  Cr.  Cas Houston's  Criminal  Cases,  Delaware. 

Hov.  Suppl Hovenden's  Supplement  to  Vesey,  Jun. 

How Howard,  United  States  Supreme. 

How.  App.  Cas Howard's  Appeal  Cases,  New  York. 

How.  (Miss.) Howard,  Mississippi. 

How.  Pr Howard's  Practice,  New  York. 

How.  Prac.  (N.  S.).  .  .Howard's  Practice,  New  Series,  (N.  Y.). 
H.  P.  C. .  . .  . . Bale's  Pleas  of  the  Crown. 


ABBREVIATIONS   TO   REPORTS.  325 

H.  &  R Harrison  and  Rutherford's  Reports,  C.  P. 

Hud.  &  B Hudson  and  Brooke's  Reports,  K.  B.,  Ireland. 

Hughes Hughes,  U.  S.  Circuit  Court,  Fourth  Circuit. 

Hughes Hughes,  Kentucky. 

Hume Hume's  Decisions,  Court  of  Session. 

Humph Humphrey,  Tennessee. 

Hun Hun,  New  York  Supreme. 

Hut Button's  Reports,  C.  P. 

Hutch.  Car Hutchinson  's  Carriers. 

Idaho Idaho. 

Idaho  T Idaho  Territory. 

I.  J.  C Irvine's  Justiciary  Cases. 

Ill Illinois. 

111.  App Illinois  Appellate. 

Ind Indiana. 

Ind.  App Indiana  Appellate. 

Indian  T Indian  Territory. 

Ins.  Law  J Insurance  Law  Journal. 

lo Iowa. 

I.  R.  C.  L Irish  Reports,  Common  Law  Series. 

Ired Iredell,  North  Carolina  Law. 

Ired.  Eq Iredell,  North  Carolina  Equity. 

I.  R.  Eq Irish  Reports,  Equity  Series. 

Ir.  Law  &  Eq Irish  Law  and  Equity  Reports,  Ireland. 

Ir.  Law  &  Ch Irish  Law  and  Equity  Reports,  N.  S. 

Iv.  Ersk Ivory's  Notes  on  Erskine's  Institute. 

Jac.  or  Jacob Jacob's  Reports,  Chancery. 

Jac.  &  W Jacob  and  Walker's  Reports,  Chancery. 

Jebb  C.  C Jebb's  Crown  Cases,  Ireland. 

Jebb  &  B Jebb  and  Bourke's  Reports,  K.  B.,  Ireland. 

Jebb  &  S Jebb  and  Syme's  Reports,  K.  B.,  Ireland. 

Jeff Jefferson,  Virginia. 

Jenk Jenkins'  Reports,  Ex. 

J.  J.  Marsh J.  J.  Marshall,  Kentucky. 

John Johnson's  Reports,  Chancery. 

John.  &  H Johnson  and  Hemming's  Reports,  Chancery. 

Johns Johnson,  New  York  Law. 

Johns.  Gas Johnson's  Cases,  New  York  Law. 

Johns.  Ch Johnson,  New  York  Chancery. 

Jo.  &  Lat Jones  &  Latouche's  Rep.  Ch.,  Ireland. 

Jon.  1,  2 Jones'  W.  and  T.  Reports,  K.  B. 

Jones Jones'  Reports,  Exch.,  Ireland. 

Jones  &  C Jones  and  Carey's  Reports,  Exch.,  Ireland. 

Jones  Eq Jones,  North  Carolina  Equity. 

Jones  L Jones,  North  Carolina  Law. 

Jones  T Jones'  Reports,  K.  B. 

Jones  W Jones'  Reports,  K.  B. 

Jones  &  S Jones  and  Spencer,  New  York. 


326  APPENDIX  J. 

Jur.  Sc Scottish  Jurist,  Court  of  Session. 

Jur.  St Judicial  Styles,  Scotland. 

Just.  Inst Justinian's  Institutes. 

J.  &  W Jacob  and  Walker's  Reports,  Chancery. 

Kames Kames'  Decisions,  Court  of  Session. 

Kames'  Eluc Kames'  Elucidations  of  the  Law  of  Scotland. 

Kames'  Rem.  D Kames'  Remarkable  Decisions,  C't  of  Ses. 

Kames'  S.  D Kames'  Select  Decisions,  Court  of  Session. 

Kan Kansas. 

Kan.  App Kansas  Appeals. 

Kay Kay's  Reports,  Chancery. 

Kay  &  J Kay  and  Johnson's  Reports,  Chancery. 

KB King's  Bench. 

K.  C.  R Rep.  temp.  King,  C.  Chancery. 

Keb Kebbl's  Reports,  K.  B. 

Keen Keen's  Reports,  Rolls  Court. 

Keilw.  Keil Keilway's  Reports,  K.  B. 

Kel Sir  John  Kelying's  Reports,  K.  B. 

Kel.  1,2 Wm.  Kelynge's  Reports,  2  parts,  Chancery. 

Kelly Kelly,  Georgia. 

Ken Kennet. 

Kent  Comm Kent's  Commentaries. 

Keny Kenyon's  Notes,  by  Hanmer,  K.  B. 

Kern Kernan,  New  York  Appeals. 

Keyes Keyes'  New  York  Appeals. 

K.  &  G.  R.  C Keane  and  Grant's  Registration  Cases. 

Kilk Lord  Kilkerran's  Decisions,  C't  of  Sess. 

Kirby Kirby,  Connecticut. 

Kit Kitchen. 

Kn Knapp's  Reports,  Privy  Council. 

Kn.  &  O Knapp  and  Ombler,  Election  Cases. 

Kulp Kulp,  Pennsylvania. 

Ky Kentucky. 

Ky.  Dec Kentucky  Decisions. 

Ky.  Law  Rep Kentucky  Law  Reports. 

La Lane's  Reports,  Exchequer. 

La Louisiana. 

La.  An Louisiana  Annual. 

Lack.  Leg.  N Lacka wanna  Legal  News,  Pennsylvania. 

Lalor  Supp Lalor's  Supplement  to  Hill  &  Denio's  (N.  Y.). 

Lamb Lambard. 

Lane.  Law  Rev Lancaster  Law  Review. 

Lans.  Ch Lansing's  Chancery,  New  York. 

Lans Lansing,  New  York  Supreme. 

Lat Latch's  Reports,  K.  B. 

Law  J.  Ch Law  Journal  Chancery. 

Law  J.  K.  B Law  Journal,  King's  Bench. 

Law  J.  M.  Cas Law  Journal,  Magistrates  Cases. 


ABBREVIATIONS  TO  REPORTS.  327 

Law  J.  P Law  Journal  Probate. 

Law  J.  P.  C Law  Journal  Privy  Cases. 

Law  J.  Q.  B Law  Journal  Queen's  Bench. 

Law  Rec Law  Recorder,  Reports,  Ireland. 

Law  Reg Law  Register  (Chicago). 

Law  Rep.  Ad.  &  EC.  . .  Admiralty  and  Ecclesiastical. 

Law  Rep.  0.  C Crown  Cases  Reserved. 

Law  Rep.  Ch Chancery  Appeal  Cases. 

Law  Rep.  C.  P Common  Pleas  Cases. 

Law  Rep.  Eq Equity  Cases. 

Law  Rep.  Ex Exchequer  Cases. 

Law  Rep.  H.  L English  and  Irish  Ap.  Cases,  H.  of  Lords. 

Law  Rep.  H.  L.  Sc. .  .Scotch  &  Divorce  Ap.  Cases,  H.  of  Lords. 
Law  Rep.  P.  &  D.  .  . .  Probate  and  Divorce. 

Law  Rep.  Q.  B Queen's  Bench  Cases. 

Law  Repos.  (N.  C.).  ..Carolina  Law  Repository,  N.  C.  Law. 

Law  T Law  Times. 

L.  &  C Leigh  and  Cave,  Crown  Cases. 

Ld.  Kem Kenyon's  Reports,  K.  B. 

Ld.  Raym Lord  Raymond's  Reports,  K.  B. 

Lea Lea  (Tenn.). 

Leach Leach's  Crown  Law. 

L.  Ed Lawyer's  Edition  Supreme  Court  Reports. 

Lee Lee  (Cal.). 

Lee  &  H Lee's  Cases,  temp.  Hardwicke,  K.  B. 

Leg.  Gaz Legal  Gazette,  Pennsylvania. 

Leg.  Gaz.  R Legal  Gazette  Reports,  Pennsylvania. 

Leg.  Int Legal  Intelligencer,  Pennsylvania. 

Leg.  O The  Legal  Observer. 

Leg.  &  Ins.  Rep Legal  and  Insurance  Reporter. 

Lehigh  Val.  Law  Rep.  Lehigh  Valley  Law  Reporter. 

Leigh Leigh,  Virginia. 

Leon Leonard's  Reports,  K.  B. 

Lev Levinz's  Reports,  K.  B. 

Lew.  C.  C Lewin's  Crown  Cases. 

Ley Ley's  Reports,  K.  B. 

L.  &  G.  temp.  Plunk.  .Lloyd  &  Goold,  temp.  Plunkett,  Chancery. 

Lib.  Reg Register  Book. 

L.  I.  L Lincoln's  Inn  Library. 

Lil Lily's  Reports  of  Entries. 

L.  J Law  Journal,  Reports  in  all  the  Courts. 

Litt Littell,  Kentucky. 

Litt.  Sel.  Cas Littell 's  Select  Cases,  Kentucky. 

Lit Littleton's  Reports,  C.  P. 

Llo.  &  Goo Lloyd  and  Goold,  temp.  Sugden,  Chy.,  Ireland. 

Lloyds  S.  Tr Lloyd's  State  Trials. 

L.  Mag The  Law  Magazine. 

L.  M.  &  P Lowndes,  Maxwell  &  Pollock's  Rep.,  Bail  Ct. 


328  APPENDIX   J. 

Lock.  Rev.  Gas Lockwood's  Reversed  Cases,  New  York  Law. 

Lofft Lofft's  Reports,  K.  B. 

Longf.  &  T Longfield  &  Townsend's  Rep.,  Ech.,  Ireland. 

Long  Quinto Year  Book,  pt.  10,  K.  B. 

Loring  &  R.  Elec.  Cas.Loring  &  Russell's  Election  Gases,  Mass. 

Lower  Ct.  Dec Lower  Court  Decisions  (O.). 

Low Lowell,  U.  S.  District  Court,  Massachusetts. 

L.  R.  A Lawyer's  Reports  Annotated. 

L.  Rev The  Law  Review. 

L.  T The  Law  Times,  Reports. 

Lud.  E.  C Luder's  Election  Cases. 

Lush Lushington's  Admiralty  Reports. 

Lut Lutwyche's  Reports,  C.  P. 

Lut.  R.  G .Lutwyche's  Registration  Cases. 

Luz.  Leg.  Obs Luzerne  Legal  Observer,  Pennsylvania. 

Luz.  Leg.  Reg Luzerne  Legal  Register,  Pennsylvania. 

L.  &  Welsb Lloyd  and  Welsby's  Commercial  Reports. 

M.  &  Ayr.  B.  L Montagu  and  Ayrton's  Bankrupt  Law. 

M.  &  Ayr.  R Montagu  and  Ayrton's  Reports,  Bankruptcy. 

MacArthur MacArthur's  Patent  Cases  (U.  S.). 

MacArthur  &  M MacArthur  &  Mackey,  D.  C. 

MacArthur's  Pat.  Cas.  MacArthur's  Patent  Cases,  U.  S. 

Mac.  &  G Macnaghten  and  Gordon's  Reports,  Chancery. 

Mac.  P.  C McCroy's  Patent  Cases. 

Mack Sir  G.  Mackenzie's  Institution,  Scotland. 

Mackey Mackey  (D.  C.). 

Mack.  Grim Sir  G.  Mackenzie's  Criminal  Law. 

Macl.  &  R Maclean  and  Robinson's  Scotch  Appeals. 

Macph Court  of  Session  Cases,  Third  Series. 

Macq.  H.  L.  Cas Macqueen's  Scotch  Appeal  Cases. 

Mad Maddox's  Exchequer  and  Formulare. 

Madd Maddock's  Reports  Chancery. 

Madd.  Ch Maddock's  Chancery  Practice. 

Man Manning  (Mich.). 

Man.  &  G Manning  and  Granger's  Reports,  C.  P. 

Man.  &  R Manning  and  Ryland's  Reports,  X.  B. 

Man.  Unrep.  Cas Manning's  Unreported  Cases,  Louisiana. 

Manson Manson  English  Reports. 

Mar March's  Reports,  K.  B. 

Marsh Marshall's  Reports,  C.  P. 

Marsh  Dec Brockenbrough's  Reports,  U.  S.  Circuit  Court. 

A.  K.  Marsh A.  K.  Marshall's  Kentucky  Reports. 

J.  J.  Marsh J.  J.  Marshall's  Kentucky  Reports. 

Mart.  (La.) Martin's  Louisiana  Reports. 

Mart.  (N.  C.) Martin,  North  Carolina  Law. 

Mart.  (N.  S.) Martin's  Reports,  New  Series,  Louisiana. 

Mart.  &  Y Martin  &  Yerger,  Tennessee. 

Mason Mason,  U.  S.  Circuit  Court,  First  Circuit. 


ABBREVIATIONS   TO   REPORTS.  329 

Mass Massachusetts. 

Mau.  &  Sel Maule  and  Selwyn's  Reports,  K.  B. 

McCahon McCahon,  U.  S.  District  Court,  Kansas. 

McAll McAllister,  U.  S.  District  Court,  California. 

McCart McCarter,  New  Jersey  Equity. 

McArthur McArthur,  District  of  Columbia. 

McCle McCleland's  Reports,  Ex. 

McCle.  &  Yo McCleland  and  Young's  Reports,  Ex. 

McCord McCord,  South  Carolina  Constitutional  Court. 

McCord  Ch McCord,  South  Carolina  Chancery. 

McCrary McCrary,  U.  S. 

McF.  R McFarlane's  Reports,  Jury  Court,  Scotland. 

McGloin McGloin,  Louisiana. 

McLean McLean,  U.  S.  Circuit  Court,  Seventh  Circuit. 

McMull McMullan,  South   Carolina  Law. 

McMull.  Eq McMullan,  South  Carolina  Equity. 

Md Maryland. 

Md.  Ch Maryland  Chancery. 

M.  D.  &  D Montagu,  Deacon  &  De  Gex's  Rep'ts. 

Me Maine. 

Mee.  &  W Meeson  and  Welsby's  Reports,  Ex. 

Meigs Meigs,  Tennessee. 

Mer.  or  Meriv Merri vale's  Reports,  Chancery. 

Mete.  (Ky.) Metcalfe,  Kentucky. 

Mete Metcalf,  Massachusetts. 

Mich Michigan. 

Mich.  Law  J Michigan  Law  Journal. 

Miles Miles,  Philadelphia  District  Court. 

Mill  Const Mill,  South  Carolina  Constitutional  Court. 

Miller Miller,  Louisiana. 

Mill.  Dec Miller's  Decisions,  U.  S.  8th  Circuit  Court. 

Milw Milward's  Reports,  Irish  Ecclesiastical. 

Minn Minnesota. 

Minor Minor,  Alabama. 

Misc.  Rep Miscellaneous  Reports,  New  York. 

Miss Mississippi. 

M.  L.  Rep.  Super.  C. .  Montreal  Law  Reports  Superior  Court. 

M.  &  McA Montagu  and  McArthur's  Reports. 

Mo Missouri. 

Mo Moore's  Reports,  K.  B. 

Mo.  App Missouri  Appeal,  St.  Louis  Court  of  Ap. 

Mo.  App.  Rep Missouri  Appellate  Reporter. 

Mod.  Rep Modern  Reports,  K.  B. 

Mol Molloy's  Chancery  Reports,  Ireland. 

Monag Monaghan  (Pa.). 

Mon.  or  B.  Mon B.  Monroe,  Kentucky. 

Mon.  or  T.  B.  Mon.  .  .Monroe,  Kentucky. 
Mont Montana. 


330  APPENDIX  J. 

Mont.  &  B Montagu  &  Bligh's  Reports,  Bankruptcy. 

Mont.  B.  0 Montague's  Reports,  Bankruptcy. 

Mont.  &  Chit Montagu  &  Chitty's  Reports,  Bankruptcy. 

Montg.  Co.  Law  Rep.  .Montgomery  County  Law  Reporter,  Pa. 

Month.  Law  Bui Monthly  Law  Bulletin  (N.  Y.). 

Moo.  Ind.  Ap Moore's  India  Appeals. 

Moo.  C.  C Moody 's  Crown  Cases. 

Moo.  J.  B J.  B.  Moore's  Reports,  C.  P. 

Moo.  &  M. Moody  and  Malkin's  Reports,  N.  P. 

Moo.  &  P Moore  and  Payne's  Reports,  C.  P. 

Moo.  P.  C.  C Moore's  Privy  Council  Cases. 

Moo.  P.  C.  C.  N.  S. ..  .Moore's  Privy  Council  Cases,  New  Series. 

Moo.  &  R Moody  and  Robinson's  Reports,  N.  P. 

Moo.  &  S Moore  and  Scott's  Reports,  C.  P. 

Moore Moore  (Ark.). 

Moore  (C.  P.) Moore's  Common  Pleas  Reports. 

Morr.  Min.  R Morrison's  Mining  Reports. 

Morris Morris,  Iowa. 

Mos Moseley's  Reports,  Chancery. 

M.  &  S Maule  and  Selwyn's  Reports,  K.  B. 

Munf Munford,  Virginia. 

Murph Murphey,  North  Carolina  Law. 

Murr Murray's  Reports,  Jury  Courts,  Scotland. 

Myl.  &  Cr Mylne  and  Craig's  Reports,  Chancery. 

Myl.  &  K Mylne  and  Keene's  Reports. 

M.  &  W Meeson  and  Welsby 's  Reports,  Ex. 

Myr.  Prob Myrick's  Probate  Court  Reports,  California. 

Nat.  Corp.  Rep National  Corporation  Reporter. 

N.  Benl New  Benloe,  K.  B.  Reports. 

N.  B.  R National  Bankruptcy  Register,  U.  S. 

N.  C North  Carolina. 

N.  C. .  • Notes  of  Cases  Ecclesiastical  and  Maritime. 

N.  Chip N.  Chipman,  Vermont. 

N.  C.  Term  R North  Carolina  Term  Reports. 

N.  D North  Dakota. 

N.  E Northeastern  Reporter. 

Neb Nebraska. 

Nels  Nelson's  Reports,  Chancery. 

Nev Nevada. 

Nev.  &  M Neville  and  Manning's  Reports,  K.  B. 

Nev.  &  P Neville  and  Perry's  Reports,  K.  B. 

Newb.  Adm Newberry's  Admiralty,  U.  S.  District  Court. 

N.  H. . New  Hampshire. 

Nisi  Prius  &  Gen.  T. 

Rep Nisi  Prius  and  General  Term  Reports  (O.). 

N.  J.  Eq New  Jersey  Equity. 

N.  J.  L New  Jersey  Law. 

N.  J,  Law  J New  Jersey  Law  Journal. 


ABBREVIATIONS  TO  REPORTS.         331 

N-  L Nelson's  Lutwyche,  Reports,  C.  P. 

N.  M New  Mexico. 

Nol.  Sett Nolan's  Settlement  Cases. 

Norris Norris,  Pennsylvania. 

North Northington's  Reports,  by  Eden,  Chancery. 

Northam.  Law  Rep.  . .  Northampton  Law  Reporter. 

N<M  &  H Nott  &  Huntington,  U.  S.  Court  of  Claims. 

N.  Nov Novella  (Juris  Civilis). 

Noy Noy 's  Reports,  K.  B. 

N-  B- New  Reports,  by  Bosanquet  and  Puller,  C.  P. 

N.  R Not  Reported. 

N.  S New  Series. 

N.  W Northwestern  Reporter. 

N.  Y New  York  Court  of  Appeals. 

N.  Y.  Ann.  Cas New  York  Annotated  Cases. 

N.  Y.  Cr.  R New  York  Criminal  Reports. 

N.  Y.  St.  Rep New  York  State  Reporter. 

N.  Y.  Supreme  Ct.  . . .  New  York  Supreme  Court. 

N.  Y.  Supp New  York  Supplement. 

O.  Benl Old  Benloe,  C.  P. 

O.  C.  D Ohio  Circuit  Court  Decisions. 

O.  G Official  Gazette  (Patent  Office). 

Ohio Ohio  Supreme  Court. 

Ohio  Cir.  Ct.  R Ohio  Circuit  Court  Reports. 

Ohio  Dec Ohio  Decisions. 

Ohio  N.  P Ohio  Nisi  Pruis. 

O.  L.  D Ohio  Lower  Court  Decisions. 

Ohio  Law  Bui Ohio  Law  Bulletin. 

Ohio  Law  J Ohio  Law  Journal. 

Ohio  Leg.  N Ohio  Legal  News. 

Ohio  St Ohio  State. 

o.  p Out  of  print. 

Okl Oklahoma. 

Olc.  Adm Olcott's  Admiralty,  U.  S.  Dist.  Court,  N.  Y. 

Or Oregon. 

Ord.  Ch Orders  in  Chancery. 

Oreg Oregon. 

Orl.  Bridgman Orlando  Bridgman's  Reports,  C.  P. 

Outerbridge Outerbridge,  Pennsylvania. 

Overt Overton,  Tennessee. 

Ow Owen's  Reports,  K.  B. 

Pac Pacific  Reporter. 

Pa.  Co.  Ct.  R Pennsylvania  County  Court  Reports. 

Pa.  Dist.  R Pennsylvania  District  Reports. 

Paige Paige,  New  York  Chancery. 

Paine Paine,  U.  S.  Circuit  Court,  Second  Circuit. 

Pal Palmer's  Reports,  K.  B. 

Pa.  Law  J Pennsylvania  Law  Journal. 


332  APPENDIX  J. 

Par Parker's  Reports,  Ex. 

Pa.  St Pennsylvania  State. 

Pa.  Super.  Ct Pennsylvania  Superior  Court  Reports. 

Pat.  App.  Cas Paton's  Appeal  Cases,  House  of  Lords. 

Patt.  &  H Patton,  Jr.,  and  Heath,  Virginia  App. 

P.  C Pleas  of  the  Crown. 

P.  &  D Perry  and  Davidson's  Reports,  K.  B. 

Pea Peake's  Reports,  K.  B. 

Peak.  Ad.  Cas Peake's  Additional  Cases. 

Peak,  N.  P.  C Peake's  Nisi  Prius  Cases. 

Pears Pearson,  Pennsylvania. 

Peck Peck,  Tennessee. 

Peck  (111.) Peck,  Illinois. 

Pen Pennington,  New  Jersey  Law. 

Penn Pennsylvania. 

Penn.  Law  Jour.  Rep.  Pennsylvania  Law  Journal  Reports. 
Penn.  Leg.  Gaz.  Rep.  .Legal  Gazette  Reports. 

Penning Pennington  (N.  J.). 

Penny Pennypacker,  Pennsylvania. 

Pen.  &  W Penrose  and  Watts,  Pennsylvania. 

Per.  &  Dav Perry  and  Davidson's  Reports,  K.  B. 

Perk Perkin's  Conveyances. 

Per.  &  K Perry  and  Knapp,  Election  Cases. 

Pet Peters,  United  States  Supreme  Court. 

Pet.  Adm Peters,  Admiralty,  U.  S.  District,  Pa. 

Pet.  C.  Ct Peters,  U.  S.  Circuit  Court,  Third  Circuit. 

P.  F.  Smith P.  F.  Smith,  Pennsylvania. 

Ph Phillip's  Reports,  Chancery. 

Phill.  Eq Phillips,  North  Carolina  Equity. 

Phill.  L Phillips,  North  Carolina  Law. 

Phillim Phillimore's  Reports,  Ecclesiastical. 

Pick Pickering,  Massachusetts. 

Pickle Pickle,  Tennessee. 

Pig.  &  R Pigott  and  Rod  well's  Election  Cases. 

Pike Pike,  Arkansas. 

Pin Pinney  (Wis.). 

Pinney Pinney,  Wisconsin. 

Pittsb.  Leg.  J Pittsburg  Legal  Journal  (Pa.). 

Pittsb.  Rep Pittsburgh  Legal  Journal  Reports. 

PI.  Com Plowden's  Com.  or  Reports,  K.  B. 

Pol Pollexfen's  Reports,  K.  B. 

Poph Popham's  Reports,  K.  B. 

Port Porter,  Alabama. 

Port.  Ind Porter,  Indiana. 

Posey  Unre.  Cas Posey's  Unreported  Cases,  Texas. 

Pow.  R.  &  D Power,  Rodwell  and  Dow's  Election  Cases. 

Pr.  Co Prerogative  Court. 

P.  R.  C.  P Practical  Register  in  Common  Pleas. 


ABBREVIATIONS   TO   REPORTS.  333 

Pr.  Dec.  (Ky.) Kentucky  Printed  Decisions,  Sneed. 

Pr.  Falc President  Falconer's  Reports,  C't  of  Seas. 

Price  or  Pr Price's  Reports,  Exchequer. 

Prob Probate  Division. 

Prob.  Ct.  Rep Probate  Court  Reporter  (O.). 

Pr.  Reg.  Ch Practical  Register  in  Chancery. 

Pr.  St Private  Statute. 

P.  W Peere  William's  Reports,  Chancery. 

Q.  B Adolphus  and  Ellis,  Q.  B.  Rep'ts,  N.  8. 

Q.  B Law  Reports,  Queen's  Bench  Division. 

Quincy Quincy,  Massachusetts. 

Rand Randolph,  Virginia. 

Rast Rastell's  Entries  and  Statutes. 

Rawle Rawle,  Pennsylvania. 

Raym Raymond. 

Ray.  T Sir  Thomas  Raymond's  Reports,  K.  B. 

Redf Redfield,  New  York  Surrogate's  Court. 

Reg.  Maj Books  of  Regiam  Majestatem,  Scotland. 

Reg.  Brev Register  of  Writs. 

Reg.  Jud Registrum  Judiciale. 

Rep.  Ch Reports  in  Chancery. 

Rep.  Eq Gilbert's  Reports  in  Equity. 

Rep.  temp.  Finch.  . .  .Finch's  Reports,  Chancery. 

R.  I Rhode  Island. 

Rice Rice,  South  Carolina  Law. 

Rice's  Eq Rice,  South  Carolina  Equity. 

Rich Richardson,  South  Carolina  Law. 

Rich,  Eq Richardson,  South  Carolina  Equity. 

Rich.  Eq.  Gas Richardson's  Equity  Cases  (S.  C.). 

Rich.  &  W Richardson  &  Woodbury  (N.  H.). 

Ridg.  &  H Ridgeway,  temp.  Hardwicke,  Chancery. 

Ridg.  L.  &  S Ridgeway,  Lapp  &  Schoale's  Rep'ts,  K.  B. 

Ridgw.  Ap Ridgeway 's  Appeals,  Ireland. 

Riley Riley,  South  Carolina. 

Riley's  Eq Riley,  South  Carolina  Equity. 

R.  M.  Charlt R.  M.  Charlton,  Georgia. 

Rob.  A Robinson's  Admiralty,  or  App.  Rep'ts 

Rob.  E Robertson's  Ecclesiastical  Reports. 

Rob.  (La.) Robinson,  Louisiana. 

Rob.  (N.  Y.) Robertsons  (N.  Y.). 

Rob.  (Va.) Robinson,  Virginia. 

Robert,  Ap Robertson's  Appeal  Cases,  Scotland. 

Robt Robertson,  New  York  City  Superior  Court. 

Roe  C.  P Roe's  Criminal  Procedure  U.  S.  Courts 

Rog.  Rec Rogers,  New  York  City  Hall  Recorder. 

Roll Roll  of  the  Term. 

Roll.  &  Roll.  Abr Rolle,  Reports  and  Abridgment. 

Root Root,  Connecticut. 


334  APPENDIX   J. 

Russ Russell's  Reports,  Chancery. 

Russ.  &  M Russell  and  Mylne's  Reports,  Chancery. 

Russ.  &  R .Russell  and  Ryan's  Crown  Case. 

Ry.  &  M Ryan  and  Moody,  N.  P.  Reports. 

Salk Salkeld's  Reports,  K.  B. 

Sandf Sandford,  New  York  City  Superior  Court. 

Sandf.  Ch Sandford,  New  York  Chancery. 

Saund Saunders'  Reports,  K.  B. 

Saund.  &  C Saunder's  and  Cole,  Bail  Court  Reports. 

Sau.  &  Sc Sause  and  Scully's  Reports,  Rolls,  Ireland. 

Sav Saville's  Reports,  C.  P. 

Sawyer Sawyer,  U.  S.  Circuit  Court,  9th  Circuit. 

Sawy Sawyer  (U.  S.). 

Saxt Saxton,  New  Jersey  Equity. 

Say Sayer's  Reports,  K.  B. 

S.  C South  Carolina. 

Scam Illinois  Reports. 

S.  C.  C Select  Chancery  Cases. 

Sch.  &  Lef Schoale  &  Lefroy's  Rep'ts,  Chanc.,  Ireland. 

Sc.  Jur Scottish  Jurist,  Court  of  Session. 

Sc.  L.  R Scottish  Law  Reporter. 

Sco.  N.  R Scott's  New  Reports,  C.  P. 

Sco.  or  Scott Scott's  Reports,  C.  P. 

S  C  Rep Supreme  Court  Reports. 

S.  Ct Supreme  Court  Reporter. 

S.  or  S.  &  D Shaw  &  Dunlop,  C't  of  Sessions,  1st  Ser. 

S.  D South  Dakota. 

S.  E Southeastern  Reporter. 

Seld Selden,  New  York  Court  of  Appeals. 

Selw.  N.  P Selwyn's  Nisi  Prius. 

Sem Semble,  seems. 

Serg.  &  R Sergeant  &  Rawle,  Pennsylvania. 

Sess.  Ca Session  Cases. 

Sh Shaw's  Reports,  C't  of  Sess.  Cases,  1st  Series. 

Sh.  App Shaw's  Reports  of  Appeal  Cases,  H.  of  L. 

Sh.  &  McL Shaw  &  McLean's  Rep'ts,  Appeal  C's,  H.  of  L. 

Shep Shepley  (Me.). 

Show Shower's  Reports,  K.  B. 

Shower's  P.  C Shower's  Parliament  Cases. 

Sid Siderfin's  Reports,  K.  B. 

Silvernail Silvernail  (N.  Y,). 

Sim.  &  St Simons  and  Stuart's  Reports,  Chancery. 

Sim.  or  Sim.  N.  S.  . .  .Simons,  or  Simon's,  N.  S.,  Reports,  Chanc. 

Skin Skinner's  Reports,  K.  B. 

Sm.  Action Smith's  (John  W.)  Action  at  Law. 

Smed.  &  M Smedes  &  Marshall,  Mississippi  Law. 

Smed.  &  M.  Ch Smedes  &  Marshall,  Mississippi  Chancery. 

Sm.  &  G Smale  and  Giffard's  Reports,  Chancery. 


ABBREVIATIONS  TO  REPORTS.         335 

Smith Smith's  Reports,  K.  B. 

Smith  (Ind.) Smith,  Indiana. 

Smith  (N.  Y.) Smiths  (N.  Y.). 

Smith  P.  F P.  F.  Smith  (Pa.). 

Smi.  &  Bat Smith  and  Batty 's  Reports,  K.  B.,  Ireland 

E.  D.  Smith E.  D.  Smith,  New  York  Common  Pleas. 

Smith  (N.  H.) Smith  (N.  H.). 

Smythe Smythe's  Reports,  C.  P.,  Ireland. 

Sneed  (Ky.) Sneed,  Kentucky  Decisions. 

Sneed  (Tenn.) Sneed,  Tennessee. 

Sol.  J Solicitor's  Journal. 

Som Somner,  Somners. 

South Southard,  New  Jersey  Law. 

South Southern  Reporter. 

Southard Southard  (N.  J.). 

Spears Spears,  South  Carolina  Law. 

Spears  Eq Spears,  South  Carolina  Equity. 

Spel Spelman. 

Spencer's  M.  Col Spencer's  Marine  Collisions. 

Spen Spencer,  New  Jersey  Law. 

Spottis Sir  R.  Spottiswood 's  Reports,  Court  of  Sess. 

Spottiswood's Spottiswood 's  Styles,  Scotland. 

Spr Sprague  (U.  S.). 

Sprague Sprague 's  Decisions,  U.  S.  Dist.,  Mass. 

S.  &  S Simons  and  Stuart's  Reports,  Chancery. 

S.  &  Sm Searlie  &  Smith's  Reports,  Probate  and  Div. 

Stair Lord  Stair's  Reports,  Court  of  Session. 

Stant Stanton  (Ohio). 

Stark.  N.  P Starkie's  Reports,  N.  P. 

Starr  &  Curtis Starr  &  Curtis'  Illinois  Statutes. 

Stat.  W Stat.  Westminster. 

Stiles Stiles  (Iowa). 

Stew Stewart,  Alabama. 

Stew Stewart  (N.  J.). 

Stew.  &  P Stewart  &  Porter,  Alabama. 

Stockt Stockton,  New  Jersey  Equity. 

Story Story,  U.  S.  Circuit  Court,  First  Circuit. 

Stra Strange's  Reports,  K.  B. 

Strob.  Eq Strobhart,  South  Carolina  Equity. 

Strob Strobhart,  South  Carolina  Law. 

St.  Tri State  Trials. 

Stuart Stuart,  Milne  &  Peddie's  Court  of  Session. 

Sty Style's  Reports,  K.  B. 

Sumn Sumner,  U.  S.  Circuit  Court,  First  Circuit. 

Sup.  Ct Supreme  Court  Reporter. 

Super.  Ct.  Rep Superior  Court  Reports. 

S.  W Southwestern  Reporter. 

Swa.  Ad Swabey 's  Admiralty  Reports. 


336  APPENDIX  j. 

Swan Swan,  Tennessee. 

Swans Swanton's  Reports,  Chancery. 

Sweeny Sweeney,  New  York  Superior  Court. 

Sw.  &  Tr Swabey  &  Tristram's  Rep'ts,  Probate  &  Div. 

Taml Tamlyn's  Reports,  Rolls. 

Taney's  Dec Taney's  Decisions,  U.  S.  4th  Circuit  Court. 

Tanner Tanner  (Ind.). 

Tapp Tappan,  Ohio  Common  Pleas. 

Taun Taunton's  Reports,  C.  P. 

Tayl.  Super.  Ct Taylor's  Superior  Court  (N.  C.). 

Tayl Taylor,  North  Carolina  Law. 

T.  B.  Mon T.  B.  Monroe  (Ky.). 

Term Tennessee  Reports. 

Term.  Ch Tennessee  Chancery  (Cooper). 

Term  (N.  C.) Taylor,  North  Carolina,  Term  Reports. 

Texas Texas  Law. 

Texas  App Texas  Court  of  Appeals. 

Tex.  Civ.  App Texas  Civil  Appeals. 

Tex.  Cr.  R Texas  Criminal  Reports. 

Tex.  Supp Texas  Supplement. 

Tiffany Tiffany  (N.  Y.). 

Tinw Lord  Tinwald's  Reports,  Court  of  Session. 

T.  &  M Temple  &  Mew's  Criminal  Appeal  Cases. 

Toth Tothill's  Reports,  Chancery. 

T.  R Term  Reports  (Durnford  and  East),  K.  B. 

Tuck.  Sur Tucker,  New  York  Surrogate's  Court. 

Turn Turner. 

Turn Turner  (Ark.). 

Turn.  &  R Turner  and  Russell's  Reports,  Chancery. 

Tyrw Tyrwhitt's  Reports,  Exchequer. 

Tyler Tyler,  Vermont. 

U.  K United  Kingdom. 

Utah Utah  Reports. 

Va Virginia. 

Va.  Gas Virginia  Cases,  Virginia. 

Van  Ness Van  Ness,  Prize  Cases,  U.  S.  Dist.  Gt. 

Vaugh Vaughan's  Reports,  C.  P. 

V.  &  B Vesey  and  Beame's  Reports,  Chancery. 

Vent Ventris'  Reports,  K.  B. 

Vern Vemon's  Reports,  Chancery. 

Vern.  &  S Vernon  &  Scriven's  Rep.,  K.  B.,  Ireland. 

Ves Vesey's  Sen.,  Reports,  Chancery. 

Ves.  Jr Vesey's  Jun.,  Reports,  Chancery. 

Ves.  &  Swa.  Ad Swabey 's  Admiralty  Reports. 

Vroom Vroom,  New  Jersey  Law. 

Vt Vermont. 

Walk.  (Mich.) Walker,  Michigan,  Chancery. 

Walk.(Miss.). Walker,  Mississippi. 


ABBREVIATIONS  TO  REPORTS.         337 

Walk.  (Pa.) Walker's  Pennsylvania. 

Wall Wallace,  U.  S.  Supreme  Court. 

Wall.  0.  Ct Wallace,  U.  S.  Circuit  Court,  3rd  Circuit. 

Wall.  Jr Wallace,  Jr.,  U.  S.  Circuit  Court,  3rd  Circuit. 

Wall.  Sr Wallace  Senior  (U.  S.). 

Wallis Wallis'  Reports,  Chancery,  Ireland. 

Ware Ware,  U.  S.  District  Court,  Maine. 

Ware,  2d  ed Ware,  Second  Edition,  U.  S.  District,  Me. 

Wash Washington. 

Wash.  C.  Ct Washington  U.  S.  Circuit  Court,  3rd  Circuit. 

Wash.  Law  R Washington  Law  Reporter. 

Wash.  T Washington  Territory. 

Wash.  (Va.) Washington,  Virginia. 

Wats Watson. 

Watts Watts,  Pennsylvania. 

Watts  &  S Watts  &  Sergeant,  Pennsylvania 

Web.  P.  C Webster's  Patent  Cases. 

Welsh Welsh  Registry  Cases,  Ireland. 

Wend Wendell,  New  York  Law. 

Went.  Off.  Exor Went  worth's  Office  of  Executor. 

West,  H.  L West's  Reports,  House  of  Lords. 

West  &  H West's  Reports,  Chancery,  temp.  Hardwicke. 

Whart Wharton,  Pennsylvania. 

Whart.  St.  Tr Wharton 's  State  Trials  (U.  S.). 

Wheat Wheaton,  U.  S.  Supreme  Court. 

Wheel Wheeler,  New  York  Criminal. 

Wheeler  Cr.  Cas Wheeler's  Criminal  Cases  (N.  Y.). 

White  &  W.  Civ.  Cas. 

Ct.  App White  &  Wilson's  Civil  Cases  Court  of  Appeals  (Tex.). 

Wight Wightwicke's  Reports,  Exchequer. 

Wilcox Wilcox  (Ohio). 

Willes Willes'  Reports,  K.  B.  and  C.  P. 

Wils Wilson's  Reports,  K.  B. 

Wils Wilson  (Ind.). 

Wils.  Ch Wilson's  Chancery  Reports. 

Wils.  Ex Wilson's  Exchequer  Reports. 

Wilson,  Civ.  Cas.  Ct. 

App Wilson's  Civil  Cases  Court  of  Appeals  (Tex.). 

Win Winch's  Reports,  C.  B. 

Wins Winston,  North  Carolina  Law. 

Wins.  Eq Winston,  North  Carolina  Equity. 

Wis Wisconsin. 

Wis.  Stat Wisconsin  Statutes. 

Withr Withrow  (Iowa). 

Wm.  Rob William  Robinson's  New  Admiralty  Reports. 

Wms Williams'  Rep.,  or  Peere  Williams'  Chan. 

W.  1,  W.  2 Statutes,  Westminster,  1,  2. 

Wolf.  &  B Wolferstan  and  Bristow's  Election  Cases. 

Vol.  1—22 


338  APPENDIX  J. 

Wolf.  &  D Wolferstan  and  Dew's  Election  Cases. 

Woodb.  &  M Woodbury  &  Minot,  U.  S.  1st  Circuit  Court. 

Woods Woods,  U.  S.  Circuit  Court,  5th  Circuit. 

Woodw.  Dec Woodward's  Decisions.  (Pa). 

Woolw Woolworth,  U.  S.  Circuit  Court,  8th  Circuit. 

Wright Wright,  Ohio  Supreme  Court. 

Wright  (Pa.) Wright's  Pennsylvania. 

W.  &  S.  App Wilson  &  Shaw's  Reports,  House  of  Lords. 

W.  Va West  Virginia. 

Wyo Wyoming  Reports. 

Wythe Wythe's  Chancery  (Va.). 

Yale  Law  J Yale  Law  Journal. 

Yates  Sel.  Cas Yates,  New  York  Law. 

Y.  B Year  Book. 

Y.  &  C Young  and  Collyer's  Eq.  Exch. 

Y.  &  C.  C.  C Younge  &  Collyer's  Chancery  Cases. 

Yeates Yeates,  Pennsylvania. 

Yelv Yelverton's  Reports,  K.  B. 

Yerg Yerger,  Tennessee. 

Y.  &  J Younge  &  Jervis'  Reports,  Exchequer. 

You Younge  Reports,  Exchequer. 

You.  &  Coll Younge  and  Collyer's  Eq.  Exch. 

You.  &  Jer , , ,  .Younge  and  Jervit's  Reports,  Exchequer. 


APPENDIX  K. 

STATUTE  OF  DE  DONIS. 

13.    Edw.  I  (Westminster  II),  Cap.  1  (A.  D.  1285). 

First.  Concerning  Lands  that  many  Times  are  given  upon  Condition, 
that  is,  to-wit:  Where  any  giveth  his  Land  to  any  Man  and  his  Wife,  and  to 
the  Heirs  begotten  of  the  Bodies  of  the  same  Man  and  his  Wife,  with  such 
condition  expressed,  that  if  the  same  Man  and  his  Wife  die  without  Heirs 
of  their  Bodies  between  them  begotten,  the  Land  so  given  shall  revert  to  the 
Giver  or  his  Heir.  (2)  In  case  also  where  one  giveth  Lands  in  free  Mar- 
riage, which  Gift  hath  a  Condition  annexed,  though  it  be  not  expressed  in 
the  deed  of  Gift,  which  is  this:  That  if  the  Husband  and  Wife  die  without 
Heirs  of  their  Bodies  begotten,  the  Land  so  given  shall  revert  to  the  Giver 
or  his  Heir.  (3)  In  case  also  where  one  giveth  Land  to  another,  and  the 
Heir  of  his  Body  issuing;  it  seemed  very  hard,  and  yet  seemeth  to  the  Givers 
and  their  Heirs,  that  their  Will  being  expressed  in  the  Gift,  was  not  heretofore, 
nor  yet  is  observed.  (4)  In  all  the  Cases  aforesaid,  after  Issue  begotten  and 
bom  between  them  (to  whom  the  Lands  were  given  under  such  Condition) 
heretofore  such  Feoffees  had  Power  to  aliene  the  Land  so  given,  and  to  disherit 
their  Issue  of  the  Land,  contrary  to  the  Minds  of  the  Givers,  and  contrary  to 
the  Form  expressed  in  the  Gift.  (5)  And  further,  When  the  Issue  of  such 
Feoffee  is  failing,  the  Land  so  given  ought  to  return  to  the  Giver  or  his  Heir, 
by  Form  of  the  Gift  expressed  in  the  Deed,  though  the  Issue  (if  any  were) 
had  died :  (6)  Yet  by  the  Deed  and  Feoff ment  of  them  (to  whom  Land  was 
so  given  upon  Condition)  the  Donors  have  heretofore  been  barred  of  their 
Reversion,  which  was  directly  repugnant  to  the  Form  of  the  Gift. 

II.  Wherefore  our  Lord  the  King,  perceiving  how  necessary  and  expe- 
dient it  should  be  to  provide  Remedy  in  the  aforesaid  Cases,  hath  ordained, 
That  the  Will  of  the  Giver,  according  to  the  Form  in  the  Deed  of  Gift  mani- 
festly expressed,  shall  be  from  henceforth  observed;   so  that  they  to  whom 
the  Land  was  given  under  such  Condition,  shall  have  no  Power  to  aliene  the 
Land  so  given,  but  that  it  shall  remain  unto  the  Issue  of  them  to  whom  it  was 
given  after  their  Death,  or  shall  revert  unto  the  Giver  or  his  Heirs,  if  Issue 
fail  (whereas  there  is  no  Issue  at  all)  or  if  any  Issue  be,  and  fail  by  Death,  or 
Heir  of  the  Body  of  such  Issue  failing.     (2)    Neither  shall  the  second  Husband 
of  any  such  Woman  from  henceforth,  have  any  Thing  in  the  Land  so  given 
upon  Condition,  after  the  Death  of  his  Wife,  by  the  Law  of  England,  nor  the 
Issue  of  the  second  Husband  and  Wife  shall  succeed  in  the  Inheritance,  but 
immediately  after  the  Death  of  the  Husband  and  Wife  (to  whom  the  Land 
was  so  given)  it  shall  come  to  their  Issue,  or  return  unto  the  Giver,  or  his  Heir, 
as  before  is  said. 

III.  And  forasmuch  as  in  a  new  Case  new  Remedy  must  be  provided, 
this  Manner  of  Writ  shall  be  granted  to  the  Party  that  will  purchase  it; 

339 


340  APPENDIX  K. 

(2)  Praecipe  A.  quod  juste  etc,  reddat  B.  manerium  de  F.  cum  suis 
pertinentis,  quod  C.  dedit  tali  viro  et  tali  mulieri,  et  haeredibus  de  ipis  viro 
et  muliere  exeuntibus.  (3)  Or  thus:  Quod  C.  dedit  tali  viro  in  liberum 
maritagium  cum  tali  muliere,  et  quod  post  mortem  praedictorum  viri  et 
mulieris,  praedicto  B.  filio  eorundem  viri  et  mulieris  descendere  debeat  per 
fonnam  donationis  praedictae,  ut  dicit  etc.  (4)  Vel,  Quod  C.  dedit  tali  et 
haeredibus  de  corpore  suo  exeuntibus  et  quod  post  mortem  illius  talis,  praedicti 
N.  filio  praedicti  talis  descendere  debeat  per  formam  etc. 

IV.  The  Writ  whereby  the  Giver  shall  recover  (when  Issue  faileth) 
is  common  enough  in  the  Chancery:  (2)  And  it  is  to-wit,  that  this  Statute 
shall  hold  Place  touching  Alienation  of  Land  contrary  to  the  Form  of  the  Gift 
hereafter  to  be  made,  and  shall  not  extend  to  Gifts  made  before.  (3)  And 
if  a  fine  be  levied  hereafter  upon  such  Lands,  it  shall  be  void  in  the  Law.  (4) 
Neither  shall  the  Heirs,  or  such  as  the  Reversion  belongeth  unto,  though  they 
be  full  of  Age,  within  England,  and  out  of  Prison,  need  to  make  their  Claim. 


APPENDIX  L. 

(QUIA   EMPTORES   TERRARUM.) 

18.  Edw.  I.  (Westminster  III)  Cap.  I.  (A.  D.  1290.) 

The  Feoffee  shall  hold  his  Land  of  the  chief  Lord,  and  not  of  the  Feoff  or. 

Forasmuch  as  Purchasers  of  Lands  and  Tenements  of  the  Fees  of  great 
Men  and  other  Lords,  have  many  Times  heretofore  entered  into  their  Fees, 
to  the  Prejudice  of  the  Lords,  to  whom  the  Freeholders  of  such  great  Men 
have  sold  their  Lands  and  Tenements  to  be  holden  in  Fee  of  their  Feoffors, 
and  not  of  the  chief  Lords  of  the  Fees,  whereby  the  same  chief  Lords  have 
many  Times  lost  their  Escheats,  Marriages,  and  Wardships  of  Lands  and 
Tenements  belonging  to  their  Fees;  which  Thing  seemed  very  hard  and 
extream  unto  those  Lords  and  other  great  Men,  and  moreover  in  this  Case 
manifest,  Disheritance:  (2)  Out  Lord  the  King,  in  his  Parliament  at  West- 
minister, after  Easter,  the  eighteenth  year  of  his  Reign,  that  is  to  wit,  in  the 
Quinzime  of  Saint  John  Baptist,  at  the  Instance  of  the  great  Men  of  the 
Realm  granted,  provided,  and  ordained,  That  from  henceforth  it  shall  be 
lawful  for  every  Freeman  to  sell  at  his  own  Pleasure  his  lands  and  Tenements, 
or  Part  of  them,  so  that  the  Feoffee  shall  bold  the  same  Lands  or  Tenements 
of  the  chief  Lord  of  the  same  Fee,  by  such  Service  and  Customs  as  his  Feoffor 
held  before, 


APPENDIX  M. 

STATUTE  OP  USES  AND  ENROLLMENTS. 

27    Henry  VIII.    Cap.  10  (A.  D.  1535). 

Where  by  the  common  laws  of  this  realm,  lands,  tenements  and  hered- 
itaments be  not  devisable  by  testament,  (2)  nor  ought  to  be  transferred  from 
one  to  another,  but  by  solemn  livery  and  seisin,  matter  of  record,  writing 
sufficient  made  bona  fide,  without  covin  or  fraud;  (3)  yet  nevertheless  divers 
and  sundry  imaginations,  subtle  inventions  and  practices  have  been  used, 
whereby  the  hereditaments  of  this  realm  have  been  conveyed  from  one  to 
another  by  fraudulent  feoffments,  fines,  recoveries  and  other  assurances 
craftily  made  to  secret  uses,  intents  and  trusts;  (4)  and  also  by  wills  and 
testaments,  sometime  made  by  nude  parolx  and  words,  sometime  by  signs 
and  tokens,  and  sometime  by  writing,  and  for  the  most  part  made  by  such 
persons  as  be  visited  with  sickness,  in  their  extreme  agonies  and  pains,  or  a 
such  time  as  they  have  scantly  had  any  good  memory  or  remembrance;  (5) 
at  which  times  they  being  provoked  by  greedy  and  covetous  persons  lying 
in  wait  about  them,  do  many  tunes  dispose  indiscreetly  and  unadvisedly 
their  lands  and  inheritances;  (6)  by  reason  whereof,  and  by  occasion  of  which 
fraudulent  feoffments,  fines,  recoveries  and  other  like  assurances  to  uses, 
confidences  and  trusts,  divers  and  many  heirs  have  been  unjustly  at  sundry 
times  disherited,  the  lords  have  lost  their  wards,  marriages,  reliefs,  harriots, 
escheats,  aids  pur  fair  fits  chivalier,  &  pur  file  marier,  (7)  and  scantly  any  per- 
son can  be  certainly  assured  of  any  lands  by  them  purchased,  nor  know  surely 
against  whom  they  shall  use  their  actions  or  executions  for  their  rights,  titles 
and  duties;  (8)  also  men  married  have  lost  their  tenancies  by  the  curtesy,  (9) 
women  their  dowers,  (10)  manifest  perjuries  by  trial  of  such  secret  wills  and 
uses  have  been  committed;  (11)  the  King's  highness  hath  lost  the  profits 
and  advantages  of  the  lands  of  persons  attainted,  (12)  and  of  the  lands  craftily 
put  in  feoffments  to  the  uses  of  aliens  born  (13)  and  also  the  profits  of  waste 
for  a  year  and  a  day  of  lands  of  felons  attainted,  (14)  and  the  lords  their  es- 
cheats thereof;  (15)  and  many  other  inconveniences  have  happened,  and  daily 
do  encrease  among  the  King's  subjects,  to  their  great  trouble  and  inquietness, 
and  to  the  utter  subversion  of  the  ancient  common  laws  of  this  realm;  (16) 
for  the  extirping  and  extinguishment  of  all  such  subtle  practised  feoffments, 
fines,  recoveries,  abuses  and  errors  heretofore  used  and  accustomed  in  this 
realm,  to  the  subversion  of  the  good  and  ancient  laws  of  the  same,  and  to  the 
intent  that  the  King's  highness,  or  any  other  his  subjects  of  this  realm,  shall 
not  hi  any  wise  hereafter  by  any  means  or  inventions  be  deceived,  damaged 
or  hurt,  by  reason  of  such  trusts,  uses  or  confidences:  (17)  it  may  please  the 
King's  most  royal  majesty,  That  it  may  be  enacted  by  his  Highness,  by  the 
assent  of  the  lords  spiritual  and  temporal,  and  the  commons,  in  this  present 
parliament  assembled,  and  by  the  authority  of  the  same,  in  manner  and  form 

343 


344  APPENDIX  M. 

following;  that  is  to  say,  That  where  any  person  or  persons  stand  or  be  seized, 
or  at  any  time  hereafter  shall  happen  to  be  seized  of,  and  in  any  honours, 
castles,  manors,  lands,  tenements,  rents,  services,  reversions,  remainders  or 
other  hereditaments,  to  the  use,  confidence  or  trust  of  any  other  person  or 
persons,  or  of  any  body  politick,  by  reason  of  any  bargain,  sale,  feoffment, 
fine,  recovery,  covenant,  contract,  agreement,  will  or  otherwise,  by  any 
manner,  means  whatsoever  it  be;  that  in  every  such  case,  all  and  every  such 
person  and  persons,  and  bodies  politick,  that  have  or  hereafter  shall  have  any 
such  use,  confidence  or  trust,  in  fee-simple,  fee-tail,  for  term  of  life  or  for  years, 
or  otherwise,  or  any  use,  confidence  or  trust,  in  remainder  or  reverter,  shall 
from  henceforth  stand  and  be  seized,  deemed  and  adjudged  in  lawful  seisin, 
estate  and  possession  of  and  in  the  same  honours,  castles,  manors,  lands, 
tenements,  rents,  services,  reversions,  remainders  and  hereditaments,  with 
their  appurtenances,  to  all  intents,  constructions  and  purposes  in  the  law  of 
and  in  such  like  estates  as  they  had  or  shall  have  in  use,  trust  or  confidence 
of  or  hi  the  same;  (19)  and  that  the  estate,  title,  right  and  possession  that 
was  in  such  person  or  persons  that  were,  or  hereafter  shall  be  seized  of  any 
lands,  tenements,  or  hereditaments,  to  the  use,  confidence  or  trust  of  any 
such  person  or  persons,  or  of  any  body  politick,  be  from  henceforth  clearly 
deemed  and  adjudged  to  be  in  him  or  them  that  have,  or  hereafter  shall  have, 
such  use,  confidence  or  trust,  after  such  quality,  manner,  form  and  condition 
as  they  had  before,  in  or  to  the  use,  confidence  or  trust  that  was  in  them. 

II.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  where 
divers  and  many  persons  be,  or  hereafter  shall  happen  to  be,  jointly  seized 
of  and  in  any  lands,  tenements,  rents,  reversions,  remainders  or  other  heredita- 
ments, to  the  use,  confidence  or  trust  of  any  of  them  that  be  so  jointly  seized, 
that  in  every  such  case  that  those  person  or  persons  which  have  or  hereafter 
shall  have  any  such  use,  confidence  or  trust  in  any  such  lands,  tenements, 
rents,  reversions,  remainders  or  hereditaments,  shall  have  henceforth  have 
and  be  deemed  and  adjudged  to  have  only  to  him  or  them  that  have,  or  here- 
after shall  have  any  such  use,  confidence  or  trust,  such  estate,  possession  and 
seisin,  of  and  in  the  same  lands,  tenements,  rents,  reversions,  remainders  and 
other  hereditaments,  in  like  nature,  manner,  form,  condition  and  course,  as 
he  or  they  had  before  in  the  use,  confidence  or  trust  of  the  same  lands,  tene- 
ments or  hereditaments;   (2)  saving  and  reserving  to  all  and  singular  persons, 
and  bodies  politick,  their  heirs  and  successors,  other  than  those  person  or 
persons  which  be  seized,  or  hereafter  shall  be  seized,  of  any  lands,  tenements 
or  hereditaments,  to  any  use,  confidence  or  trust,  all  such  right,  title,  entry,  in- 
terest, possession,  rents  and  action,  as  they  or  any  of  them  had,  or  might 
have  had  before  the  making  of  this  act. 

III.  And  also  saving  to  all  and  singular  those  persons,  and  to  their 
heirs,  which  be,  or  hereafter  shall  be  seized  to  any  use,  all  such  former  right, 
title,  entry,  interest,  possession,  rents,  customs,  services  and  action,  as  they 
or  any  of  them  might  have  had  to  his  or  their  own  proper  use,  in  or  to  any 
manors,  lands,  tenements,  rents  or  hereditaments,  whereof  they  be,  or  hereafter 
shall  be  seized  to  any  other  use,  as  if  this  present  act  had  never  been  had  nor 
made;  any  thing  contained  in  this  act  to  the  contrary  notwithstanding. 

IV.  And  where  also  divers  persons  stand  and  be  seized  of  and  in  any 


STATUTE   OF    USES   AND    ENROLLMENTS.  345 

lands,  tenements  or  hereditaments,  in  fee-simple  or  otherwise,  to  the  use 
and  intent  that  some  other  person  or  persons  shall  have  and  perceive  yearly 
to  them,  and  to  his  or  their  heirs,  one  annual  rent  of  x.li.  or  more  or  less 
out  of  the  same  lands  and  tenements,  and  some  other  person  one  other  annual 
rent,  to  him  and  his  assigns  for  term  of  life  or  years,  or  for  some  other  special 
time,  according  to  such  intent  and  use  as  hath  been  heretofore  declared, 
limited  and  made  thereof: 

V.  Be  it  therefore  enacted  by  the  authority  aforesaid,  That  in  every 
such  case  the  same  persons,  their  heirs  and  assigns,  that  have  such  and  interest, 
to  have  and  perceive  any  such  annual  rents  out  of  any  lands,  tenements  or 
hereditaments  that  they   and  every  of  them,  their  heirs  and  assigns,  be 
adjudged  and  deemed   to  be    in    possession  and  seisin  of  the  same  rent, 
of  and  in  such  like  estate  as  they  had  in  the  title,  interest  or  use  of  the  said 
rent  or  profit,  and  as  if  a  sufficient  grant,  or  other  lawful  conveyance  had  been 
made  and  executed  to  them,  by  such  as  were  or  shall  be  seized  to  the  use  or 
intent  of  any  such  rent  to  be  had,  made  or  paid,  according  to  the  very  trust 
and  intent  thereof,  (2)  and  that  all  and  every  such  person  and  persons  as  have, 
or  hereafter  shall  have,  any  title,  use  and  interest  in  or  to  any  such  rent  or 
profit,  shall  lawfully  distrain  for  non-payment  of  the  said  rent,  and  in  their 
own  names  make  avowries,  or  by  their  bailiffs  or  servants  make  conisances 
and  justifications,  (3)  and  have  all  other  suits,  entries  and  remedies  for  such 
rents,  as  if  the  same  rents  had  been  actually  and  really  granted  to  them,  with 
sufficient  clauses  of  distress,  re-entry,  or  otherwise,  according  to  such  condi- 
tions, pains,  or  other  things  limited  and  appointed,  upon  the  trust  and  intent 
for  payment  or  surety  of  such  rent. 

VI.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  whereas 
divers  persons  have  purchased,  or  have  estate  made  and  conveyed  of  and  in 
divers  lands,  tenements,  and  hereditaments  unto  them  and  to  their  wives,  and 
to  the  heirs  of  the  husband,  or  to  the  husband  and  to  the  wife,  and  to  the 
heirs  of  their  two  bodies  begotten,  or  to  the  heirs  of  one  of  their  bodies 
begotten,   or  to  the  husband   and  to  the  wife  for  term  of  their  lives,  or 
for  term  of  life  of  the  said  wife;  (2)  or  where  any  such   estate   or  pur- 
chase of  any  lands,  tenements,  or  hereditaments,  hath  been  or    hereafter 
shall  be  made  to  any  husband  and  to  his  wife,  in  manner  and  form  ex- 
pressed, or  to  any  other  person  or  persons,  and  to  their  heirs  and  assigns, 
to  the  use  and  behoof  of  the  said  husband  and  wife,  or  to  the  use  of  the 
wife,  as  is  before  rehearsed,  for  the  jointer  of  the  wife;   (3)  that  then  in  every 
such  case,  every  woman  married,  having  such  jointer  made  or  hereafter  to 
be  made,  shall  not  claim,  nor  have  title  to  have  any  dower  of  the  residue  of 
the  lands,  tenements  or  hereditaments,  that  at  any  time  were  the  said  hus- 
band's by  whom  she  hath  any  such  jointer,  nor  shall  demand  nor  claim  her 
dower  of  and  against  them  that  have  the  lands  and  inheritances  of  her  said 
husband;   (4)  but  if  she  have  no  such  jointer,  then  she  shall  be  admitted  and 
enabled  to  pursue,  have  and  demand  her  dower  by  writ,  after  the  due  course 
and  order  of  the  common  laws  of  this  realm;  this  act,  or  any  law  or  provision 
made  to  contrary  thereof  notwithstanding. 

VII.  Provided  alway,  That  if  any  such  woman  be  lawfully  expulsed 
or  evicted  from  her  said  jointer,  or  from  any  part  thereof,  without  any  fraud 


346  APPENDIX  M. 

or  covin,  by  lawful  entry,  action,  or  by  discontinuance  of  her  husband,  then 
every  such  woman  shall  be  endowed  of  as  much  of  the  residue  of  her  husband's 
tenements  or  hereditaments,  whereof  she  was  before  dowable,  as  the  same 
lands  and  tenements  so  evicted  and  expulsed  shall  amount  or  extend  unto. 

VIII.  Provided  also,  That'this  act,  nor  anything  therein  contained  or 
expressed,  extend  or  be  in  any  wise  hurtful  or  prejudicial  to  any  woman  c-r 
women  heretofore  being  married,  of,  for  or  concerning  such  right,  title,  use, 
interest  or  possession,  as  they  or  any  of  them  have,  claim  now  dead  or  de- 
ceased; anything  contained  in  this  act  to  the  contrary  notwithstanding. 

IX.  Provided  also,  That  if  any  wife,  have,  or  hereafter  shall  have  any 
manors,  lands,  tenements,  or  hereditaments  unto  her  given  and  assured  after 
marriage,  for  term  of  her  life,  or  otherwise  in  jointer,  except  the  same  assurance 
be  to  her  made  by  act  of  parliament,  and  the  said  wife  after  that  fortune  to 
overlive  her  said  husband,  in  whose  time  the  said  jointer  was  made  or  assured 
unto  her,  that  then  the  same  wife  so  overliving  shall  and  may  at  her  liberty, 
after  the  death  of  her  said  husband,  refuse  to  have  and  take  the  lands  and 
tenements  so  to  her  given,  appointed  or  assured  during  the  coverture,  for 
term  of  her  life,  or  otherwise  in  jointer,  except  the  same  assurance  be  to  her 
made  by  act  of  parliament,  as  is  aforesaid,  (2)  and  thereupon  to  have,  ask, 
demand  and  takes  her  dower  by  writ  of  dower  or  otherwise,  according  to  the 
common  law,  of  and  in  all  such  lands,  tenements  and  hereditaments  as  her 
husband  was  and  stood  seized  of  any  state  of  inheritance  at  any  time  during 
the  coverture,  anything  contained  in  this  act  to  the  contrary  thereof  not- 
withstanding. 

X.  Provided  also,  That  this  present  act,  or  anything  herein  contained, 
extend  nor  be  at  any  time  hereafter  interpreted,  expounded  or  taken  to 
extinct,  release,  discharge  or  suspend  any  statute,  recognizances  or  other 
bond,  by  the  execution  of  any  estate,  of  or  in  any  lands,  tenements,  or  herediat- 
ments,  by  the  authority  of  this  act,  to  any  person  or  persons,  or  bodies  politick; 
anything  contained  in  this  act  to  the  contrary  notwithstanding. 

XI.  And  forasmuch  as  great  ambiguities  and  doubts  may  arise  of  the 
validity  and  invalidity  of  wills  heretofore  made  of  any  lands,  tenements, 
and  hereditaments,  to  the  great  trouble  of  the  King  s  subjects;   (2)  the  King's 
most  royal  majesty  minding  the  tranquility  and  rest  of  his  loving  subjects, 
of  his  most  excellent  and  accustomed  goodness  is  pleased  and  contented  that 
it  be  enacted  by  the  authority  of  this  present  parliament,    That  all  manner 
true  and  just  wills  and  testaments  heretofore  made  by  any  person  or  persons 
deceased,  or  that  shall  decease  before  the  first  day  of  May,  that  shall  be  in 
the  year  of  our  Lord  God  1536,  of  any  lands,  tenements  or  other  hereditaments, 
shall  be  taken  and  accepted  good  and  effectual  in  the  law,  after  such  fashion, 
manner  and  form  as  they  were  commonly  taken  and  used  at  any  time  within 
forty  years  next  afore  the  making  of  this  act;  anything  contained  in  this  act, 
or  in  the  preamble  thereof,  or  any  opinion  of  the  common  law,  to  the  contrary 
thereof  notwithstanding. 

XII.  Provided  always,  That  the  King  s  highness  shall  not  have, 
demand  or  take  any  advantage  or  profit,  for,  or  by  occasion  of  the  executing 
of  any  estate,  only  by  authority  of  this  act,  to  any  person  or  persons,  or 
bodies  politick,  which  now  have,  or  on  this  side  the  said  first  day  of  May, 


STATUTE   OF  USES  AND   ENROLLMENTS.  347 

which  shall  be  in  the  year  of  our  Lord  God  1536,  shall  have  any  use  or  uses, 
trusts  or  confidences  in  any  manors,  lands,  tenements,  or  hereditaments 
holden  of  the  King's  highness,  by  reason  of  primer  seisin,  livery,  ouster  le 
main,  fine  for  alienation,  relief  or  harriot;  (2)  but  that  fines  for  alienations, 
reliefs  and  harriots,  shall  be  paid  to  the  King's  highness,  and  also  liveries 
and  ouster  les  mains  shall  be  used  for  uses,  trusts  and  confidences  to  be  made 
and  executed  in  possession  by  authority  of  this  act,  after  and  from  the  said 
first  day  of  May,  of  lands  and  tenements,  and  other  hereditaments  holden  of 
the  King,  in  such  like  manner  and  form,  to  all  intents,  constructions  and 
purposes,  as  hath  heretofore  been  used  or  accustomed  by  the  order  of  the 
laws  of  this  realm. 

XIII.  Provided  also,  That  no  other  person  or  persons,  or  bodies 
politick,  of  whom  any  lands,  tenements  or  hereditaments  be  or  hereafter  shall 
be  holden  mediate  or  immediate,  shall  in  any  wise  demand  or  take  any  fine, 
relief  or  harriot,  for  or  by  occasion  of  the  executing  of  any  estate  by  the 
authority  of  this  act,  to  any  person  or  persons,  or  bodies  politick,  before  the 
said  first  day  of  May,  which  shall  be  in  the  year  of  our  Lord  God  1536. 

XIV.  And  be  it  enacted  by  authority  aforesaid,  That  all  and  singular 
person  and  persons,  and  bodies  politick,  which  at  any  time  on  this  side  the 
said  first  day  of  May,  which  shall  be  in  the  year  of  our  Lord  God  1536,  shall 
have  any  estate  unto  them  executed  of  and  in  any  lands,  tenements,  or  heredi- 
taments, by  the  authority  of  this  act,  shall  and  may  have  and  take  the  same 
or  like  advantage,  benefit,  voucher,  aid  prayer,  remedy,  commodity,  and 
profit  by  action,  entry,  condition  or  otherwise,  to  all  intents,  constructions 
and  purposes,  as  the  person  or  persons  seized  to  their  use  of  or  in  any  such 
lands,  tenements,  or  hereditaments  so  executed,  had,  should,  might  or  ought 
to  have  had  at  the  time  of  the  execution  of  the  estate  thereof,  by  the  authority 
of  this  act,  against  any  other  person,  or  persons,  of  or  for  any  waste,  disseisin, 
trespass,  condition  broken,  or  any  other  offence,  cause  or  thing  concerning  or 
touching  the  said  lands  or  tenements  so  executed  by  the  authority  of  this  act. 


APPENDIX  N. 

STATUTE  ABOLISHING  FEUDAL  SYSTEM. 

12  Car.  II.     Cap.  24.  (A.  D.  1660.) 

An  act  for  taking  away  the  court  of  wards  and  liveries,  and  tenures 
in  capite,  and  by  knights-eervice,  and  purveyance,  and  for  settling  a  revenue 
upon  his  Majesty  in  lieu  thereof. 

Whereas  it  has  been  found  by  former  experience,  That  the  courts  of 
wards  and  liveries,  and  tenures  by  knights-service,  either  of  the  King  or 
others,  or  by  knights-service  in  capite,  or  socage  in  capite  of  the  King,  and 
the  consequents  upon  the  same,  have  been  much  more  burdensome,  grievous 
and  prejudicial  to  the  kingdom,  than  they  have  been  beneficial  to  the  King: 
(2)  And  whereas  since  the  intermission  of  the  said  court,  which  hath  been 
from  the  fourth  and  twentieth  day  of  February  which  was  in  the  year  of  our 
Lord  one  thousand  six  hundred  forty  and  five,  many  persons  have  by  will  and 
otherwise  made  disposal  of  their  lands  held  by  knights-service,  whereupon 
divers  questions  might  possibly  arise,  unless  some  seasonable  remedy  be 
taken  to  prevent  the  same;  (3)  be  it  therefore  enacted  by  the  King  our  sove- 
reign lord,  with  the  assent  of  the  lords  and  commons  in  parliament  assembled, 
and  by  the  authority  of  the  same,  and  it  is  hereby  enacted,  That  the  court 
of  wards  and  liveries,  and  all  wardships,  liveries,  primerseisins,  and  ouster- 
lemains,  values  and  forfeitures  of  marriages,  by  reason  of  any  tenure  of  the 
King's  Majesty,  or  of  any  other  by  knights-service,  and  all  mean  rates,  and 
all  other  gifts,  grants,  charges  incident  or  arising,  for  or  by  reason  of  ward- 
ships, liveries,  primer-seisins,  or  ousterlemains  be  taken  away  and  discharged, 
and  are  hereby  enacted  to  be  taken  away  and  discharged,  from  the  said 
twenty-fourth  day  of  February  one  thousand  six  hundred  forty-five;  any 
law,  statute,  custom  or  usage  to  the  contrary  hereof  in  any  wise  notwith- 
standing; (4)  And  that  all  fines  for  alienations,  seizures  and  pardons  for 
alienations,  tenure  by  homage,  and  all  charges  incident  or  arising,  for  or  by 
reason  of  wardship,  livery,  primer-seisin,  or  ousterlemain,  or  tenure  by  knights- 
service,  escuage,  and  also  aid  pur  file  marrier,  and  pur  fair  fitz  chivalier,  all 
other  charges  incident  thereunto,  be  likewise  taken  away  and  discharged, 
from  the  said  twenty-fourth  day  of  February  one  thousand  six  hundred  forty 
and  five;  any  law,  statute,  custom  or  usage  to  the  contrary  hereof  in  any 
wise  notwithstanding;  (5)  And  that  all  tenures  by  knights-service  of  the 
King,  or  of  any  other  person  and  by  knights-service  in  capite,  and  by  socage 
in  capite  of  the  King,  and  the  fruits  and  consequents  thereof,  happened  or 
which  shall  or  may  hereafter  happen  or  arise  thereupon  or  thereby,  be  taken 
away  and  discharged,  any  law,  statute,  customer  or  usage  to  the  contrary 
hereof  in  anywise  notwithstanding;  (6)  and  all  tenures  of  any  honours, 
manors,  lands,  tenements  or  hereditaments,  or  any  estate  of  any  inheritance 
at  the  common  law,  held  either  of  the  King,  or  of  any  other  person  or  persons, 
bodies  politick  or  corporate  are  hereby  enacted  to  be  turned  into  free  and 

349 


350  APPENDIX  N. 

common  socage,  to  all  intents  and  purposes,  from  the  said  twenty-fourth 
day  of  February  one  thousand  six  hundred  forty-five,  and  shall  be  so  con- 
strued, adjudged  and  deemed  to  be  from  the  said  twenty-fourth  day  of  Febru- 
ary one  thousand  six  hundred  forty-five,  and  forever  thereafter  turned  into 
free  and  common  socage;  any  law,  statute,  custom  or  usage  to  the  contrary 
hereof  in  any  wise  notwithstanding. 

II.  And  that  the  same  shall  forever  hereafter  stand  and  be  discharged 
of  all  tenure  by  homage,  escuage,  voyages  royal  and  charges  for  the  same, 
wardships  incident  to  tenure  by  knights-service,  and  values  and  forfeitures 
of  marriage,  and  all  other  charges  incident  to  tenure  by  knights-service,  and 
of  and  from  aide  pur  file  marrier  and  aide  pur  fair  fitz  chivalier;  any  law, 
statute,  usage  or  custom  to  the  contrary  in  any  wise  notwithstanding;  (2) 
And  that  all  conveyances  and  devises  of  any  manors,  lands,  tenements  and 
hereditaments  made  since  the  said  twenty-fourth  day  of  February,  shall  be 
expounded  to  be  of  such  effect,  as  if  the  same  manors,  lands,  tenements  and 
hereditaments  had  been  then  held  and  continued  to  be  holden  in  free  and 
common  socage  only;  any  law,  statute,  custom  or  usage  to  the  contrary  hereof 
in  any  wise  notwithstanding. 

III.  And  be  it  further  ordained  and  enacted  by  the  authority  of  this 
present  parliament,  That  one  act  made  in  the  reign  of  King  Henry  the  Eighth, 
intituled,  An  act  for  the  establishment  of  the  court  of  the  King's  wards; 
and  also  one  act  of  parliament  made  in  the  thirty-third  year  of  the  reign  of 
the  said  King  Henry  the  Eighth,  concerning  the  officers  of  the  court  of  wards 
and  liveries,  and  every  clause,  article  and  matter  in  the  said  acts  contained, 
shall  from  henceforth  be  repealed  and  utterly  void. 

IV.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  all 
tenures  hereafter  to  be  created  by  the  King's  majesty,  his  heirs  or  successors, 
upon  any  gifts  or  grants  of  any  manors,  lands,  tenements  or  hereditaments, 
of  any  estate  of  inheritance  at  the  common  law,  shall  be  in  free  and  common 
socage,  and  shall  be  adjudged  to  be  in  free  and  common  socage  only,  and  not 
by  knights-service  or  in  capite,  and  shall  be  discharged  of  all  wardship,  value 
and  forfeiture  of  marriage,  livery,  primer-seisin,  ousterlemain,  aide  pur  faier 
fitz  chivalier,  and  pur  file  marrier;  any  law,  statute  or  reservation  to  the  con- 
trary thereof  in  any  wise  notwithstanding. 

V.  Provided,  nevertheless,  and  be  it  enacted,  That  this  act,  or  any 
thing  herein  contained,  shall  not  take  away,  nor  be  construed  to  take  away, 
any  rents  certain,  heriots  or  suits  of  court  belonging  or  incident  to  any  former 
tenure  now  taken  away  or  altered  by  virtue  of  this  act,  or  other  services 
incident  or  belonging  to  tenure  in  common  socage,  due  or  to  grow  due  to  the 
King's  majesty,  or  mean  lords,  or  other  private  person,  or  the  fealty  and 
distresses  incident  thereunto;  (2)  and  that  such  relief  shall  be  paid  in  respect 
of  such  rents  as  is  paid  in  case  of  a  death  of  a  tenant  in  common  socage. 

VI.  Provided  always,  and  be  it  enacted,  That  anything  herein  con- 
tained shall  not  take  away,  nor  be  construed  to  take  away,  any  fines  for 
alienation  due  by  particular  customs  of  particular  manors  and  places,  other 
than  fines  for  alienations  of  lands  or  tenements  holden  immediately  of  the 
King  in  capite. 

VII.  Provided  also,  and  be  it  further  enacted,  That  this  act,  or  any- 
thing therein  contained,  shall  not  take  away  nor  be  construed  to  take  away, 


STATUTE   ABOLISHING   FEUDAL   SYSTKM.  351 

tenures  in  Frank  Almoign,  or  to  subject  them  to  any  greater  or  other  services 
than  they  now  are;  (2)  nor  to  alter  or  change  any  tenure  by  copy  of  court 
roll,  or  any  services  incident  thereunto;  (3)  not  to  take  away  the  honorary 
services  of  grand  sergeantry,  other  than  of  wardship,  marriage  and  value  of 
forfeiture  of  marriage,  escuage,  voyages  royal  and  other  charges  incident  to 
tenure  by  knights-service;  and  other  than  aide  pur  faier  fitz  chivalier  and 
aide  pur  file  marrier. 

VIII.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
where  any  person  hath  or  shall  have  any  child  or  children  under  the  age  of 
one  and  twenty  years,  and  not  married  at  the  time  of  his  death,  That  it  shall 
and  may  be  lawful  to  and  for  the  father  of  such  child  or  children,  whether 
born  at  the  time  of  the  decease  of  the  father,  or  at  that  time  in  ventre  sa 
mere,  or  whether  such  father  be  within  the  age  of  one  and  twenty  years,  or 
of  full  age,  by  his  deed  executed  in  his  lifetime,  or  by  his  last  will  and  testa- 
ment in  writing,  in  the  presence  of  two  or  more  credible  witnesses,  in  such 
manner,  and  from  time  to  time  as  he  shall  respectively  think  fit,  to  dispose 
of  the  custody  and  tuition  of  such  child  or  children,  for  and  during  such  time 
as  he  or  they  shall  respectively  remain  under  the  age  of  one  and  twenty  years, 
or  any  lesser  time,  to  any  person  or  persons  in  possession  or  remainder,  other 
than  popish  recusants;  (2)  and  that  such  disposition  of  the  custody  of  such 
child  or  children  made  since  the  twenty-fourth  of  February  one  thousand 
six  hundred  forty-five  or  hereafter  to  be  made,  shall  be  good  and  effectual 
against  all  and  every  person  or  persons  claiming  the  custody  or  tuition  of 
such  child  or  children  as  guardian  in  socage  or  otherwise;  (3)     And  that  such 
person  or  persons,  to  whom  the  custody  of  such  child  or  children  hath  been 
or  shall  be  so  disposed  or  devised  as  aforesaid,  shall  and  may  maintain  an 
action  of  ravishment  of  ward  or  trespass,  against  any  person  or  persons, 
which  shall  wrongfully  take  away  or  detain  such  child  or  children,  for  the 
recovery  of  such  child  or  children;  (4)    and  shall  and  may  recover  damages 
for  the  same  in  the  said  action,  for  the  use  and  benefit  of  such  child  or  children. 

IX.  And  be  it  further  enacted,  That  such  person  or  persons,  to  whom 
the  custody  of  such  child  or  children  hath  been  or  shall  be  so  disposed  or 
devised,  shall  and  may  take  into  his  or  their  custody  to  the  use  of  such  child 
or  children,  the  profits  of  all  lands,  tenements  and  hereditaments  of  such 
child  or  children;  and  also  the  custody,  tuition  and  management  of  the  goods, 
chattels  and  personal  estate  of  such  child  or  children,  till  their  respective 
ages  of  one  and  twenty  years,  or  any  lesser  time,  according  to  such  disposition 
aforesaid;  (2)    and  may  bring  such  action  or  actions  in  relation  thereunto, 
as  by  law  a  guardian  in  common  socage  might  do. 

X.  Provided  also,  That  this  act  or  anything  therein  contained,  shall 
not  extend  to  alter  or  prejudice  the  custom  of  the  city  of  London,  nor  of  any 
other  city  or  town  corporate,  or  of  the  town  of  Berwick  upon  Tweed,  con- 
cerning orphans;  nor  to  discharge  any  apprentice  from  his  apprenticeship. 

XI.  Provided  also,  That  neither  this  act,  nor  anything  therein  con- 
tained, shall  infringe  or  hurt  any  title  of  honour,  feodal  or  other,  by  which 
any  person  hath  or  may  have  right  to  sit  in  the  lords  house  of  parliament, 
as  to  his  or  their  title  of  honour,  or  sitting  in  parliament,  and  the  privilege 
belonging  to  them  as  peers;  this  act,  or  anything  therein  contained  to  the 
contrary  in  any  wise  notwithstanding. 


APPENDIX  O. 

THE  STATUTES  OF  FRAUDS 

29.    Car.  II,  Cap.  3  (A.  D.  1676). 

For  prevention  of  many  fraudulent  practices,  which  are  commonly 
endeavored  to  be  upheld  by  perjury  and  subornation  of  perjury;  (2)  be 
it  enacted  by  the  King's  most  excellent  Majesty,  by  and  with  the  advice 
and  consent  of  the  lords  spiritual  and  temporal,  and  the  commons,  in  this 
present  parliament  assembled,  and  by  the  authority  of  the  same,  That  from 
and  after  the  four  and  twentieth  day  of  June,  which  shall  be  in  the  year  of  our 
Lord  one  thousand  six  hundred  seventy  and  seven,  all  leases,  estates,  interests 
of  freehold,  or  terms  of  years,  or  any  uncertain  interest  of,  in,  to  or  out  of  any 
messuages,  manors,  lands,  tenements  or  hereditaments,  made  or  created 
by  livery  and  seisin  only,  or  by  parol,  and  not  put  in  writing,  and  signed  by 
the  parties  so  making  or  creating  the  same,  or  their  agents  thereunto  lawfully 
authorized  by  writing,  shall  have  the  force  and  effect  of  leases  or  estates  at 
will  only,  and  shall  not  either  in  law  or  equity  be  deemed  or  taken  to  have 
any  other  or  greater  force  or  effect;  any  consideration  for  making  any  such 
parol  or  estates,  or  any  former  law  or  usage,  to  the  contrary  notwithstanding. 

II.  Except,  nevertheless,  all  leases  not  exceeding  the  term  of  three 
years  from  the  making  thereof,  whereupon  the  rent  reserved  to  the  landlord 
during  such  term,  shall  amount  unto  two  thirds  parts  at  the  least  of  the  full 
improved  value  of  the  thing  demised. 

III.  And  moreover,  That  no  leases,  estates  or  interests,  either  of 
freehold,  or  terms  of  years,  or  any  uncertain  interest,  not  being  copyhold 
or  customary  interest,  of,  in,  to  or  out  of  any  messuages,  manors,  lands,  tene- 
ments or  hereditaments,  shall  at  any  time  after  the  said  four  and  twentieth 
day  of  June,  be  assigned,  granted  or  surrendered,  unless  it  be  by  deed  or  note 
in  writing,  signed  by  the  party  so  assigning,  granting  or  surrendering  the 
same,  or  their  agents  thereunto  lawfully  authorized  by  writing,  or  by  act  and 
operation  of  law. 

IV.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  from 
and  after  the  said  four  and  twentieth  day  of  June  no  action  shall  be  brought 
whereby  to  charge  any  executor  or  administrator  upon  any  special  promise, 
to  answer  damages  out  of  his  own  estate;  (2)  or  whereby  to  charge  the  defend- 
ant upon  any  special  promise  to  answer  for  the  debt,  default  or  miscarriages 
of  another  person;   (3)  or  to  charge  any  person  upon  any  agreement  made  upon 
consideration  of  marriage;  (4)  or  upon  any  contract  or  sale  of  lands,  tenements 
or  hereditaments,  or  any  interest  in  or  concerning  them;  (5)  or  upon  any  argee- 
ment  that  is  not  to  be  performed  within  the  space  of  one  year  from  the  making 
thereof;   (6)  unless  the  agreement  upon  which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by  the  party 
to  be  charged  therewith  or  some  other  person  thereunto  by  him  lawfully 
authorized. 

Vol.  I. -23.  353 


354  APPENDIX   O. 

V.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  from 
and  after  the  said  four  and  twentieth  day  of  June  all  devises  and  bequests 
of  any  lands  or  tenements,  devisable  either  by  force  of  the  statute  of  wills 
or  by  this  statute,  or  by  force  of  the  custom  of  Kent,  or  by  the  custom  of  any 
borough,  or  any  other  particular  custom,  shall  be  in  writing,  and  signed  by 
the  party  so  devising  the  same,  or  by  some  other  person  in  his  presence  and  by 
his  express  directions,  and  shall  be  attested  and  subscribed  in  the  presence  of 
the  said  devisor  by  three  or  four  credible  witnesses,  or  else  they  shall  be  utterly 
void  and  of  none  effect. 

VI.  And  moreover,  no  devise  in  writing  of  lands,  tenements  or  heredi- 
taments, nor  any  clause  thereof,  shall  at  any  time  after  the  said  four  and 
twentieth  day  of  June,  be  revocable,  otherwise  than  by  some  other  will  or 
codicil  in  writing,  or  other  writing  declaring  the  same,  or  by  bum-cancelling, 
tearing  or  obliterating  the  same  by  the  testator  himself,  or  in  his  presence  and 
by  his  directions  and  consent;    (2)  but  all  devises  and  bequests  of  lands  and 
tenements  shall  remain  and  continue  in  force,  until  the  same  be  burnt,  can- 
celled, torn  or  obliterated  by  the  testator,  or  his  directions,  in  manner  afore- 
said, or  unless  the  same  be  altered  by  some  other  will  or  codicil  in  writing,  or 
other  writing  of  the  devisor,  signed  in  the  presence  of  three  or  four  witnesses, 
declaring  the  same;  any  former  law  or  usage  to  the  contrary  notwithstanding. 

VII.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  from 
and  after  the  said  four  and  twentieth  day  of  June  all  declarations  or  creations 
of  trusts  or  confidences  of  any  lands,  tenements  or  hereditaments,  shall  be 
manifested  and  proved  by  some  writing  signed  by  the  party  who  is  by  law 
enabled  to  declare  such  trust,  or  by  his  last  will  in  writing,  or  else  they  shall 
be  utterly  void  and  of  none  effect. 

VIII.  Provided  always,  That  where  any  conveyance  shall  be  made  of 
any  lands  or  tenements  by  which  a  trust  or  confidence  shall  or  may  arise  or 
result  by  the  implication  or  construction  of  law,  or  be  transferred  or  extin- 
guished by  an  act  or  operation  of  law,  then  and  in  every  such  case  such  trust 
or  confidence  shall  be  of  the  like  force  and  effect  as  the  same  would  have  been 
in  this  statute  had  not  been  made;  anything  therein  before  contained  to  the 
contrary  notwithstanding. 

IX.  And  be  it  further  enacted,  That  all  grants  and  assignments  of 
any  trust  or  confidence  shall  likewise  be  in  writing,  signed  by  the  party  grant- 
ing or  assigning  the  same,  or  by  such  last  will  or  devise,  or  else  shall  likewise 
be  utterly  void  and  of  none  effect. 

X.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  from 
and  after  the  said  four  and  twentieth  day  of  June  it  shall  and  may  be  lawful 
for  every  sheriff  or  other  officer  to  whom  any  writ  or  precept  is  or  shall  be 
directed,  at  the  suit  of  any  person  or  persons,  of,  for  and  upon  any  judgment, 
statute  or  recognizance  hereafter  to  be  made  or  had,  to  do  make  and  deliver 
execution  unto  the  party  in  that  behalf  suing,  of  all  such  lands,  tenements, 
rectories,  tithes,  rents  and  hereditaments,  as  any  other  person  or  persons  be 
in  any  manner  of  wise  seized  or  possessed,  or  hereafter  shall  be  seized  or  pos- 
sessed, in  trust  for  him  against  whom  execution  is  so  sued,  like  as  the  sheriff 
or  other  officer  might  or  ought  to  have  done,  if  the  said  party  against  whom 
execution  hereafter  shall  be  so  sued,  had  been  seized  of  such  lands,  tenements, 


THE   STATUTES   OF   FRAUDS.  355 

rectories,  tithes,  rents  or  other  hereditaments  of  such  estate  as  they  be  seized 
of  in  trust  for  him  at  the  time  of  the  said  execution  sued;  (2)  which  lands, 
tenements,  rectories,  tithes,  rents  and  other  hereditaments,  by  force  and  virtue 
of  such  execution,  shall  accordingly  be  held  and  enjoyed  freed  and  discharged 
from  all  incumbrances  of  such  person  or  persons  as  shall  be  so  seized  or  pos- 
sessed in  trust  for  the  persons  against  whom  such  execution  shall  be  sued; 
(3)  and  if  any  cestuy  que  trust  hereafter  shall  die,  leaving  a  trust  in  fee-eimple 
to  descent  to  his  heir,  there  and  hi  every  such  case  such  trust  shall  be  deemed 
and  taken,  and  is  hereby  declared  to  be,  assets  by  descent,  and  the  heir  shall  be 
liable  to  and  chargeable  with  the  obligation  of  his  ancestors  for  and  by  reason 
of  such  assets,  as  fully  and  amply  as  he  might  or  ought  to  have  been,  if  the 
estate  in  law  had  descended  to  him  in  possession  in  like  manner  as  the  trust 
descended;  any  law,  custom  or  usage  to  the  contrary  in  any  wise  notwith- 
standing. 

XI.  Provided  always,  That  no  heir  shall  become  chargeable  by  reason 
of  any  estate  or  trust  made  assets  in  his  hands  by  this  law,  shall  be  reason  of 
any  kind  of  plea  or  confession  of  the  action,  or  suffering  judgment  by  nient 
dedire,  or  any  other  matter,  be  chargeable  to  pay  the  condemnation  out  of 
his  own  estate;   (2)  but  execution  shall  be  sued  of  the  whole  estate  so  made  as- 
sets in  his  hands  by  descent,  in  whose  hands  soever  it  shall  come  after  the 
writ  purchased,  in  the  same  manner  as  it  is  to  be  at  and  by  the  common  law, 
where  the  heir  at  law  pleading  a  true  plea,  judgment  is  prayed  against  him 
thereupon;   anything  in  this  present  act  contained  to  the  contrary  notwith- 
standing. 

XII.  And  for  the  amendment  of  the  law  in  the  particulars  following; 
(2)  be  it  further  enacted  by  the  authority  aforesaid,  That  from  henceforth  any 
estate  pur  auter  vie  shall  be  devisable  by  a  will  in  writing,  signed  by  the 
party  so  devising  the  same,  or  by  some  other  person  in  his  presence  and  by 
his  express  directions,  attested  and  subscribed  in  the  presence  of  the  devisor 
by  three  or  more  witnesses;    (3)  and  if  no  such  devise  thereof  be  made  the 
same  shall  be  chargeable  in  the  hands  of  the  heir,  if  it  shall  come  to  him  by 
reason  of  a  special  occupancy  as  assets  by  descent,  as  in  case  of  lands  in 
fee-simple;    (4)  and  in  case  there  be  no  special  occupant  thereof,  it  shall  go  to 
the  executors  or  administrators  of  the  party  that  had  the  estate  thereof  by 
virtue  of  the  grant,  and  shall  be  assets  in  their  hands. 

XVII.  And  be  it  further  enacted  by  the  authority  aforesaid,  That  from 
and  after  the  said  four  and  twentieth  day  of  June  no  contract  for  the  sale 
of  any  goods,  wares  and  merchandizes,  for  the  price  of  ten  pounds  sterling  or 
upwards,  shall  be  allowed  to  be  good,  except  the  buyer  shall  accept  part  of  the 
goods  so  sold,  and  actually  receive  the  same,  or  give  something  in  earnest  to 
bind  the  bargain,  or  in  part  of  payment,  or  that  some  note  or  memorandum  in 
writing  of  the  said  bargain  be  made  and  signed  by  the  parties  to  be  charged 
by  such  contract,  or  their  agents  thereunto  lawfully  authorized. 

XIX.  And  for  prevention  of  fraudulent  practices  in  setting  up  nun- 
cupative wills,  which  have  been  the  occasion  of  much  perjury;  (2)  be  it  enacted 
by  the  authority  aforesaid,  That  from  and  after  the  aforesaid  four  and  twen- 
tieth day  of  June  no  nuncupative  will  shall  be  good,  where  the  estate  there  by 
bequeathed  shall  exceed  the  value  of  thirty  pounds,  that  is  not  proved  by  the 


356  APPENDIX   O. 

oaths  of  three  witnesses  (at  the  least)  that  were  present  at  the  making  thereof; 
(3)  nor  unless  it  be  proved  that  the  testator  at  the  time  of  pronouncing  the 
same,  did  bid  the  persons  present,  or  some  of  them,  bear  witness,  that  such 
was  his  will,  or  to  that  effect;  (4)  nor  unless  such  nuncupative  will  were  made 
in  the  time  of  the  last  sickness  of  the  deceased,  and  in  the  house  of  his  or  her 
habitation  or  dwelling,  or  where  he  or  she  hath  been  resident  for  the  space  of 
ten  days  or  more  next  before  the  making  of  such  will,  except  where  such  person 
was  surprised  or  taken  sick,  being  from  his  own  home,  and  died  before  he 
returned  to  the  place  of  his  or  her  dwelling. 

XX.  And  be  it  further  enacted,  That  after  six  months  passed  after 
the  speaking  of  the  pretended  testamentary  words,  no  testimony  shall  be 
received  to  prove  any  will  nuncupative,  except  the  said  testimony,  or  the  sub- 
stance thereof,  were  committed  to  writing  within  six  days  after  the  making  of 
the  said  will. 

XXI.  And  be  it  further  enacted,  That  no  letters  testamentary  or 
probate  of  any  nuncupative  will  shall  pass  the  seal  of  any  court,  till  fourteen 
days  at  the  least  after  the  decease  of  the  testator  be  fully  expired;    (2)  nor 
shall  any  noncupative  will  be  at  any  time  received  to  be  proved,  unless  process 
have  first  issued  to  call  in  the  widow,  or  next  of  kindred  to  the  deceased,  to  the 
end  they  may  contest  the  same,  if  they  please. 

XXII.  And  be  it  further  enacted,  That  no  will  in  writing  concerning 
any  goods  or  chattels,  or  personal  estate,  shall  be  repealed,  nor  shall  any 
clause,  devise  or  bequest  therein,  be  altered  or  changed  by  any  words,  or 
will  by  word  of  mouth  only,  except  the  same  be  in  the  life  of  the  testator 
committed  to  writing,  and  after  the  writing  thereof  read  unto  the  testator 
and  allowed  by  him,  and  proved  to  be  so  done  by  three  witnesses  at  the  least. 

XXIII.  Provided  always,  That  notwithstanding  this  act,  any  soldier 
being  in  actual  military  service,  or  any  mariner  or  seaman  being  at  sea,  may 
dispose  of  his  moveables,  wages  and  personal  estate,  as  he  or  they  might  have 
done  before  the  making  of  this  act. 

XXIV.  And  it  is  hereby  declared,  That  nothing  in  this  act  shall  ex- 
tend to  alter  or  change  the  jurisdiction  or  right  of  probate  of  wills  concerning 
personal  estates,  but  that  the  prerogative  court  of  the  archbishop  of  Canter- 
bury, and  other  ecclesiastical  courts,  and  other  courts  having  right  to  the 
probate  of  such  wills,  shall  retain  the  same  right  and  power  as  they  had  be- 
fore, in  every  respect;  subject,  nevertheless  to  the  rules  and  direction  of  this 
act. 

XXV.  And  for  the  explaining  one  act  of  this  present  parliament, 
intituled,  An  act  for  the  better  settling  of  intestates  estates;  (2)  be  it  declared 
by  the  authority  aforesaid,  That  neither  the  said  act,  nor  any  thing  therein 
contained,  shall  be  construed  to  extend  to  the  estates  of  feme  coverts  that 
shall  die  intestate,  but  that  their  husbands  may  demand  and  have  admin- 
istration of  their  rights,  credits,  and  other  personal  estates,  and  recover  and 
enjoy  the  same,  as  they  might  have  done  before  the  making  of  the  said  act." 


INDEX. 
FIRST  SUBJECT— INTRODUCTION  TO  THE  STUDY  OF  LAW. 

A 

Abbreviation  of  names  of  Reports 25 

Abstracts  (Subject  XVIII) 21 

Administration  (Subject  XXXIII) 22 

Adjective  Law,  Definition  of 15 

Agency  (Subject  VII) 21 

American  Adjective  Law 23 

B 

Bailments  (Subject  XII) 22 

Bankruptcy  (Subject  XXIX) 22 

Babylonia,  Laws  of 26 

Bills  and  Notes  (Subject  XXVI) 21 

Bracton,  Writings  of 15 

C 

Carriers  (Subject  XIII) 21 

Civil  or  Roman  Law  in  United  States 22 

Codes 23 

Code  Pleading  (Subject  XXXV) 22 

Contracts  (Subject  VI) 21 

Contracts,  Difference  Between  Roman  Law  and  Common  Law,  Concep- 
tions of 20 

Contract  Law,  Appearance  of 20 

Unimportant  in  Early  Legal  Systems 20 

Common  Law  Pleading  (Subject  XXXIV) 22 

Common  Law,  as  Basis  of  State  Law 22 

Not  a  Part  of  Federal  Law 22 

Copyrights  (Subject  XVI) 21 

Constitution  of  United  States 24 

Highest  Law  in  the  Land 24 

Criminal  Procedure  (Subject  XXXI) 22 

Criminal  Law  (Subject  XXX) 21 

Criminal  Law,  Early  Union  with  Law  of  Torts 18 

D 

Damages  (Subject  IX) 22 

Domestic  Relations  (Subject  X) 21 

Domestic  Relations,  One  of  the  Earliest  Branches  of  Law 17 

E 

England,  Laws  of 26 

357 


358  INDEX 

Equity  Jurisprudence  (Subject  XX) 22 

Equity  Pleading  (Subject  XXII) 22 

Equity  in  United  States 22 

Evidence  (Subject  XXXVII) 22 

F 

Father,  Authority  Over  Child 17 

Federal  Procedure  (Subject  XXXVI) 22 

Federal  Statutes 24 

G 

Greece,  Laws  of 26 

Guaranty  and  Suretyship  (Subject  XXVII) 21 

H 

Husband,  Authority  Over  Wife 17 

History,  Relation  to  Law 25 

History,  Importance  of  Study  to  Law  Student 26 

I 

Insurance  (Subject  XXVIII) 21 

International  Law,  Rules  of,  How  Enforced 16 

L 

Legal  Conceptions,  Order  of  Appearance 14 

Legal  Ethics  (Subject  XLI) 22 

Legal  History  (Subject  II) 22 

Laws,  of  Absolute  Monarchy,  Basis  for 12 

Of  Constitutional  Government,  Basis  for 12 

Law,  Definition  and  Nature 11,  12 

Definition  of,  in  Broad  Sense  of  Term 11 

Definition  of,  in  Restricted  Sense  of  Term 11 

Early  Branches  of 16 

Law-Developing  Nations 26 

Law,  Relation  to  History 25 

M 

Marriage,  Basis  of  Family 17 

Early  Forms  of  Either  Involve  Capture  or  Purchase 17 

Position  of  Wife  Under  Such  Forms  of 17 

Mining  Law  (Subject  XIX) 21 

Municipal  Ordinances 24 

\  0 

Origin  of  Law 15 

P 

Partnership  (Subject  XXIII) 21 

Patents  (Subject  XV) 21 

Personal  Property  (Subject  XIV) 21 

Personal  Property,  Older  than  Real  Property 19 

Private  Corporations  (Subject  XXIV) 21 

Private  International  Law  (Subject  XXXIX) 22 


INTRODUCTION  TO    THE   STUDY   OF   LAW.          359 

Property,  Distinction  Between  Real  and  Personal 19 

Unimportant  in  Early  Legal  Systems 19 

Public  International  Law  (Subject  XXXVIII) 22 

Public  Corporations  (Subject  XXV) 22 

R 

Real  Property  (Subject  XVII) 21 

Reports,  Abbreviations  of  Names 25 

Reporter  System 25 

Rome,  Laws  of 26 

Roman  Law,  Treatment  of  Contracts  in 20 

Roman  or  Civil  Law  in  United  States 22 

S 

Sales  (Subject  XI) 21 

Society,  Made  Possible  by  Law 13,  14 

Spanish  American  Law  (Subject  XL) 22 

State  Constitutions  (Subject  IV) 22 

State  Constitutions 24 

State  Statutes 24 

Statutory  Construction  (Subject  V) 22 

Substantive  Law,  Definition  of 15 

T 

Torts  (Subject  VIII) 21 

Torts,  Early  Union  with  Criminal  Law 18 

Trusts  (Subject  XXI) 22 

U 

United  States  Constitutional  Law  (Subject  III) 22 

W 

Wife,  Position  Under  Early  Forms  of  Marriage. 17 

Wills  (Subject  XXXII) 21 

Where  to  Find  the  Law 23 

Wrongs,  First  Method  of  Redress  for 18 


INDEX. 
SECOND  SUBJECT— LEGAL  HISTORY. 

A 

Adjective  Law,  of  Babylon 32 

Of  Greece 41 

Early  English 153 

Actio  Per  Manus  Injectionem r 50 

Actio  Per  Judicis  Postulationem 50 

Actio  Per  Pignoris  Capionem 50 

Actio  Per  Sacramentum 50 

Aelfred,  the  Great,  Laws  of 87-  88 

Aetheberht,  First  Great  Anglo-Saxon  Law  Maker 81 

Aids,  Feudal 150 

American  Revolution,  Effect  of,  Upon  Govemment-of  England 143 

Annapolis  Convention 219 

Anglo-Saxon,  Conquest  of  Britain 74-  77 

Early  Political  and  Constitutional  History  of,  in  England 80 

Seven  Kingdoms 81 

Private  Law 98 

Methods  of  Trial 98 

Contract  Law 98 

Articles  of  Confederation 212 

Defects  of 214 

Judicial  Power  of  United  States  Under 214 

Athens,  Government  of 40 

Trials  of  Law  Suits  in 41 

Rules  as  to  Competency  of  Witnesses 42 

B 

Babylonians  First  Great  Cosmopolitan  Race  in  History 29 

Commercial  Importance 29 

Greatest  Work 30 

Babylonian  Law,  Importance  of 30 

Adjective  Law 32 

Witnesses 32 

Domestic  Relations 33 

As  to  Marriage 34 

Form  of  Marriage  Contract 34 

Married  Woman,  Position  of 35 

Real  property 35 

Personal  property 36 

Wills 36 

Contract  Law 36 

361 


362  INDEX. 

Partnerships 37 

Banking 37 

Admiralty 37 

Bottomry  Bonds 37 

Bills  in  Equity,  Early  Forms  of 172-176 

Bill  of  Rights,  Passage  of 139 

Provisions  of 139 

Effect 139 

Boc-land 98 

Bologna,  Study  of  Roman  Law  at  University  of 69 

Burgage,  Tenure  by 149 

C 

Cancellation  of  Written  Instruments,  Bills  for 177 

Canon  Law,  Jurisdiction  of 70 

Extent  of 71 

Canute,  Character  of  Reign  of 94 

Policy  of 94 

Cedric 78 

Charles  I,  Accession  to  Throne 126 

Rules  Without  Parliament 127-128 

Relations  with  Long  Parliament 129-131 

Character  of 131 

Defeat  and  Capture  of 132 

Execution  of 133 

Charles  II,  Character  of 135 

Government  of 136 

Charitable  Uses,  Statute  of 166 

Civil  Law 69 

Clarendon,  Constitution  of 164 

Codes 57 

Confederation,  Articles  of 212 

Defects  of 214 

Judicial  Powers  of  United  States  Under 214 

Comitia  Centuriata 46 

Comitia  curiata 46 

Comitia  tributa 47,     49 

Commons,  House  of,  Position  Under  Tudors 120 

Contest  with  Stuarts 121-130 

Rights  Claimed  by  first  of  James  I's 122 

Dissolved  by  Charles 126 

Government  Without 127-128 

Common  Pleas,  Court  of 106 

Colonies  English,  in  America 185 

The  Thirteen 193 

Charter 194 

Proprietary 194 

Royal 195 

Common  Law,  Contest  with  Civil  and  Canon  Law 162 


LEGAL   HISTORY.  363 

Rigidity  of 167 

Contest  with  Equity 180 

Connecticut,  Colonial  History  and  Government  of 201 

Connecticut  Compromise 231 

Constitutional  Convention,  Causes  Leading  up  to 218 

Meets  in  May,  1787 221 

Character  of  Members 221 

Three  Great  Compromises  of 230-236 

Constitutions 54 

Constitution  of  Clarendon 164 

Constitution  of  United  States,  Sources  of 222-223 

Adoption  of 236 

Early  Amendments  to 237 

Political  Divisions  on  the  Interpretation  of.  .  - 238 

Last  Three  Amendments 241 

Constitutional  History  of  United  States,  Recent 241 

Consuls - 46 

Continental  Congress 211,  212 

Contract  Law  of  Babylonians 36 

Early  Contract  Law  of  Rome 50 

Of  Anglo-Saxons 98 

Early  English 161 

Development  of  English 162 

Criminal  Law,  Early  English 158 

Cromwell,  Oliver,  Head  of  Army  of  Independents 132 

Position  of 133 

Government  of 134 

Corpus  Juris  Civilis 69 

Curia  Regis,  Takes  Place  of  Witenagemot 103 

Legislative  and  Judicial  Duties  Separated 104 

Development  of,  into  the  English  Parliament 110 

Danish  Conquest  of  England 93-  94 

Decrees 55 

Decretium  Gratiam 70 

D 

De  Donis,  Statute  of 153 

Delaware,  Colonial  History  and  Government  of 205 

Digest  of  Pandects  of  Justinian 59 

Divine  Service,  Tenure  by 150 

Divorce,  Two  Forms  of 161 

Domestic  Relations  Under  Babylonian  Laws 33 

Under  Grecian  Laws 42 

Under  Common  Law 160-161 

Dutch  Colonies  in  America 188 

Dunstan,  Work  of 89-  90 

E 

Eadward,  the  Elder 

Eadward  the  Confessor 96 


364  INDEX. 

Eadgar,  Laws  of 90 

East  Anglia 78,  81 

Ecclesiastical  Courts,  Contest  with  Common  Law  Courts 163 

Ecgberht,  First  King  Over  all  England 85 

Edicts 54 

Edward  I,  Reforms  of 112 

Parliament  of  1295 112 

Edward  III,  History  of  Parliament  During  Reign 112-119 

English  Colonies  in  America 165 

Title  to  Land 186-193 

Essex 77-81 

Equity  Jurisprudence,  Origin  of 169 

In  Reign  of  Richard  II 170 

A  Supplemental  System 171 

Equity  Courts,  Contest  with  Common  Law  Courts 181 

Exchequer,  Court  of 106 

F 

Feudalism,  Various  Aspects  of 146,  147 

First  Introduced  into  England 91 

Comparison  Between  Anglo-Saxon  and  Norman 91 

As  Established  by  William  1 103 

Nature  of 146 

End  of 152 

Feudal  Tenures 147-150 

Frankalmain,  Tenure  by l.-O 

Fraud,  Jurisdiction  of  Equity  Over 178 

French  Colonies  in  America 188 

Folc-land 98 

G 

Georgia 209 

George  III,  Character  and  Policy  of 143 

Germania,  The 75 

Germanic  Customs,  Described  by  Tacitus 76 

Greece,  Place  in  Legal  History 39 

Influence  Upon  Rome 39 

Grecian  Law,  Public 40 

Connection  with  Religion 41 

Adjective  Law 41 

Domestic  Relations 42 

Commercial  Law 43 

Gregorianian  and  Hermogemanian  Codes 57 

H 

Habeas  Corpus  Act 166 

Hammurabi,  Code  of 31 

Hampden,  John 128-131 

Harold,  Basis  of  Claim  to  English  Throne 110 

Hengist  and  Horsa 77 


LEGAL   HISTORY.  365 

Henry  I,  Disputed  Succession  to  Throne 104 

His  Charter  of  Liberties 104 

Charters  to  Boroughs  and  Board  Guilds 105 

Henry  II,  His  Angevin  Descent 106 

Comes  to  Throne  by  Terms  of  Treaty  of  Wallingford 105 

Legal  Reforms  of 105 

Henry  VII,  Succession  to  Throne 117 

Relation  to  Royal  Family 117 

Heriots 151 

House  of  Commons,  Petition  Against  Spread  of  Equity  Jurisprudence.  ..  171 

House  of  Hanover,  Accession  to  Throne 141 

Character  of  First  Two  Rulers.  .                                                          .  142 


Ine 83 

Institutes  of  Justinian 63 

J 

James  I,  Theory  of  Government 121 

Contest  with  House  of  Commons 122-123 

Relations  with  the  Courts 124 

John,  Character  of  Government  of 107 

Grants  Magna  Charta 107 

Jurisconsults 55 

Jury  Trial,  Origin  of 159 

Only  Allowed  in  Certain  Forms  of  Actions 160 

Jus  Gentium 51-53 

Jus  Respondendi 55 

Justinian  Code 57 

Justinian 57-  65 

Code  of 57 

Institutes  of 63 

Jutes,  First  to  Invade  Britain 77 

K 

Kent 77-  81 

Kentucky  Resolutions 240 

King's  Bench,  Court  of 106 

Knight  Service,  Tenure  by 150 

L 

Lancaster,  House  of,  Claim  to  English  Throne 115 

Legis  Actionis 49 

Licinian  Law 46,  49 

Long  Parliament,  Election  of 129 

Abuses  Abolished  by 130 

M 

Magna  Charta,  Granted  by  John 107 

General  Character  of 108 


366  INDEX. 

Effect  of 108 

Four  Principal  Provisions 109 

Mandates 55 

Marriage,  Common  Law 160 

Maryland,  Colonial  History  and  Government  of 207 

Massachusetts,  Colonial  History  and  Government  of 197 

Mercia 77,  78,  81,  82,  83,  84 

Ministry  System 140-  141 

N 

New  Jersey,  Colonial  History  and  Government  of 204 

New  Jersey  Plan 227 

Character  and  Provisions  of 228-  229 

Test  Vote  on 229 

New  Hampshire,  Colonial  History  and  Government  of 203 

New  York,  Colonial  History  and  Government  of 204 

North  Carolina,  Colonial  History  and  Government  of 208 

Northumbria 78,  80,  81,  82,  83 

Norman  Conquest  of  England 101 

Immediate  Results  of 102 

Effect  upon  English  Law 145 

0 

Offa 84 

Ordeals  in  Anglo-Saxon  Law 99 

Original  Writs , 154 

Outlawry 158 

P 

Parliament,  Development  of,  from  Curia  Regis 110 

of  1265 Ill 

of  1295 112 

In  Fourteenth  Century 113 

Division  into  Two  Houses 113 

Patricians  and  Plebeians,  Contest  between 46,  47,49 

Petition  of  Right 125-  126 

Penn,  William 206 

Pennsylvania 205 

Pitt,  William 142 

Plymouth  Colony 198 

Popinian 56 

Praetors 49 

Praetor  Peregrinus 52 

Praetor  Urbanius 52 

Publilian  Law.. 47 

Pym,  John,  Leader  of  House  of  Commons 131 

Q 

Quia  Emptores,  Statute  of ....,,,.,   153 


LEGAL  HISTOHV.  367 

R 

Relief .v 151 

Rescripts 55 

Revolutionary  War 209 

Real  Character  of 210 

Rhode  Island,  Colonial  History  and  Government  of 202 

Roman  Law,  Renewed  Study  of 68 

Romano-Barbarians  Codes 68 

Roman  Law,  Importance  of,  Strictly 43 

Early  Form  of  Marriage 45 

First  Reforms  in 47 

Twelve  Tables 48 

Legis  Actionis 49 

Early  Contract  Law 50 

Jus  Gentium 51 

The  Constitutions 54 

Jus  Respondendi 55 

The  Codes 57 

Rome,  Character  of  Early  Inhabitants 44 

Early  Political  Institutions 45 

The  Republic 46 

The  Empire 63 

S 

Sakemamy ,  Tenure  by 150 

Serjeanty,  Tenure  by 149 

Ship  Money,  Contest  Over 128 

Simon  de  Montfort,  Influence  upon  Parliament Ill 

Slavery,  Compromise  on,  in  Constitutional  Convention 234-  236 

Socage,  Tenure  by 149 

South  Carolina,  Colonial  History  and  Government  of 208 

Spanish  Colonies  in  America 188 

Stamp  Act 211 

Statute  of  Charitable  Uses 166 

Statute  of  Wills 166 

Statute  of  Uses 165,  184, 

Stuarts,  Accession  to  English  Throne 121 

Character  of  Rulers  of  this  Family 135 

Rebellions  in  Favor  of 142 

Sussex 77,  81 

T 

Teutonic  Origin  of  England's  Political  and  Legal  Institutions 73 

Teutonic  Conquests  of  Roman  Provinces 67 

Tenures 147,  150 

Knight  Service 148 

Incidents  of 150 

Serjeanty 149 

Socage 149 

Burgage 149 


368  INDEX. 

Villein 150 

Sakemanry 150 

Frankalmain 150 

Divine  Service.' 150 

Theodosian  Code. 57 

Trespass  on  the  Case 157 

Tribunes 47,  49 

Tribonian 58,  65 

Tudor,  House  of 119-  120 

Character  of  English  Government  Under 119 

Position  of  House  of  Commons  Under 120 

Twelve  Tables,  Law  of 48 

U 

United  States  Constitution 222-  223 

Sources  of 222-  223 

Adoption  of 236 

Early  Amendments  to 237 

Political  Divisions  on  the  Interpretation  of 238 

Last  Three  Amendments  of 241 

Uses,  Statute  of 165,  184 

Uses,  Introduction  into  England 182 

Statutes  Against 183 

Jurisdiction  of  Equity  Over 183 

V 

Valerio-Horation  Laws 48 

Veto  Power  of  Tribunes 47 

Virginia,  Colonial  History  and  Government  of 195 

Virginia  Plan 224 

Character  of 225 

Provisions  of 226 

Test  Vote  on 228 

Virginia  Resolutions 239 

Villein,  Tenure  by 150 

W 

Walpole,  Robert 142 

War  of  the  Roses 114,  118 

Wardship •.  151 

Wedmore,  Treaty  of 87 

Wessex 77,  81,  83,  85,  87 

Westminster  II,  Statute  of 156 

William  Pitt 142 

William  the  Conqueror,  Basis  of  Claims  to  English  Throne 101 

Wills,  Among  Anglo-Saxons 98 

Wills,  Statute  of 166 

Witenagemot 96-  97 

Writ  of  Entry 155 

Writs,  Original 154 

Writ  of  Right 155 


Table  of  Contents  by  Subjects 
Law  Library 


VOL.1 


VOL.  II 


VOL.  Ill 


VOL.  IV 


VOL.V 


VOL.  VI 


f  FIRST  SUBJECT— INTRODUCTION  TO  THE  STUDY  OF  LAW. 
I  SECOND  SUBJECT— LEGAL  HISTORY. 

f  THIRD  SUBJECT— UNITED  STATES  CONSTITUTIONAL  LAW. 
I  FOURTH  SUBJECT— STATE  CONSTITUTIONS. 
1  FIFTH  SUBJECT  —  INTERPRETATION  AND  CONSTRUCTION  OP 
CONSTITUTIONS  AND  STATUTES. 

f  SIXTH  SUBJECT— CONTRACTS. 
1  SEVENTH  SUBJECT— AGENCY. 

f  EIGHTH  SUBJECT— TORTS. 

{  NINTH  SUBJECT— DAMAGES. 

I  TENTH  SUBJECT— DOMESTIC  RELATIONS. 

ELEVENTH  SUBJECT— SALES. 
TWELFTH  SUBJECT— BAILMENTS. 
THIRTEENTH  SUBJECT— CARRIERS. 
FOURTEENTH  SUBJECT— PERSONAL  PROPERTY. 
FIFTEENTH  SUBJECT— PATENTS. 
.  SIXTEENTH  SUBJECT— COPYRIGHTS. 

f  SEVENTEENTH  SUBJECT— REAL  PROPERTY. 
{  EIGHTEENTH  SUBJECT— ABSTRACTS. 
I  NINETEENTH  SUBJECT— MINING  LAW. 


f  TWENTIETH  SUBJECT— EQUITY  JURISPRUDENCE. 
VOL.  VII    \  TWENTY-FIRST  SUBJECT— TRUSTS. 

( TWENTY-SECOND  SUBJECT— EQUITY  PLEADING. 

f  TWENTY-THIRD  SUBJECT— PARTNERSHIP. 

VOL.  VIII   {  TWENTY-FOURTH  SUBJECT— PRIVATE  CORPORATIONS. 
[  TWENTY-FIFTH  SUBJECT— PUBLIC  CORPORATIONS. 


VOL.  IX 


VOLX 


VOL.  XI 


VOL.  XII 


TWENTY-SIXTH  SUBJECT— BILLS  AND  NOTES: 
TWENTY-SEVENTH  SUBJECT— GUARANTY  AND  SURETYSHIP. 
TWENTY-EIGHTH  SUBJECT— INSURANCE. 
TWENTY-NINTH  SUBJECT— BANKRUPTCY. 

f  THIRTIETH  SUBJECT— CRIMINAL  LAW. 
THIRTY-FIRST  SUBJECT— CRIMINAL  PROCEDURE. 
THIRTY-SECOND  SUBJECT— WILLS. 

THIRTY-THIRD  SUBJECT —EXECUTORS  AND  ADMINISTRA- 
TORS. 

THIRTY-FOURTH  SUBJECT— COMMON  LAW  PLEADING. 
THIRTY-FIFTH  SUBJECT— CODE  PLEADING. 
THIRTY-SIXTH  SUBJECT— JURISDICTION  OF  THE  FEDERAL 

COURTS  AND  FEDERAL  PROCEDURE. 
THIRTY-SEVENTH  SUBJECT— EVIDENCE. 

THIRTY-EIGHTH  SUBJECT— INTERNATIONAL  LAW. 
THIRTY-NINTH  SUBJECT— CONFLICT  OF  LAWS  OR  PRIVATE 

INTERNATIONAL  LAW. 

FORTIETH  SUBJECT— SPANISH-AMERICAN  LAW. 
FORTY-FIRST  SUBJECT— LEGAL  ETHICS 


CHART  OF  THE  LAW 

(The  Roman  Numeral  after  a  subject  shows  the  number  of  such  subject 
in  the  Law  Library) 


National 

or 

Municipal' 
Law 


Public 
Law 


Constitutional  and 

Statutory  Law 


United  States  Constitutional 

Law,  III 

State  Constitutions,  IV 
Statutory  Construction,  V 
,  Public  Corporations,  XXV 


Wrongs  Against  f  Criminal  Law,  XXX 

the  Public  1  Criminal  Procedure,  XXXI 


Private 
Law 


Substantive 
Law 


Adjective 
Law 


( Property. 


Contracts 

With  their 

various 
subuivibioiu 


Real  Property,  XVII 
Abstracts,  XVIII 
Mining  Law,  XXIX 
Personal  Property,  XIV 
Patents,  XV 
Copyrights,  XVI 
[  Wills,  XXXII 

Contracts,  VI 
Agency,  VII 
Sales,  XI 
Bailments,  XII 
Carriers,  XIII 
Partnership,  XXIII 
Private  Corporations,  XXIV 
Bills  and  Notes,  XXVI 
Guaranty  and  Suretyship, 

XXVII 
[  Insurance,  XXVIII 


Fnuitv      /  Equity  Jurisprudence,  XX 
*•"•  \Trusts,  XXI 

Torts,  VIII 
Domestic  Relations,. X 

Common  Law  Pleading,  XXXIV 
Equity  Pleading,  XXII 
Code  Pleading,  XXXV 
Federal  Procedure,  XXXVI 
Evidence,  XXXVII 
Damages,  IX 
Administration,  XXXIII 
( Bankruptcy,  XXIX 


Internationa!  Law. 


Introduction  to  the  Study  of  Law,  I 
Legal  HisLory,  II 
Spanish-American  Law,  XL 
Legal  Ethics,  XLI 


Copjrlfrht.  r.i<iH.    l 
All  rights 


..y   LitSKARY 

UNIVERSITY  OF  CALIFORNIA 
^        LOS  ANGELES 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


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